Reflections on the Senate Confirmation Hearings, Part II - Duck, Duck, Goose

When asked what the Senate hearings revealed about Judge Sotomayor's legal views, the distinguished law scholar, Prof. Laurence Tribe responded: "Nothing." That is because the senators have accepted the following response from all recent court nominees: "I cannot answer that question because that issue may come before me, if I am confirmed." I assume the reasoning being that the judge would have to recuse herself (withdraw from the case) because she had already expressed her views on the issue. In my opinion, this practice and the Senate's acquiescence in it is wrong and counterproductive to the real purpose of the Senate hearings for judicial nominees. (This is not meant to be a criticism of Judge Sotomayor, because all nominees have followed the same practice.)

The hearings are not really about judicial qualifications any more. One must assume that presidents will have picked someone qualified (with some few exceptions). The inquiry then primarily focuses on the judicial philosophy of the nominee. I agree that a nominee should not answer hypothetical questions on cases that may arise in the future, but I see no reason why nominees should not answer questions regarding existing court opinions. Why can't the nominee be asked: Do you agree or disagree with the Supreme Court's rulings on specific cases involving abortion, states' rights, executive power, the Second Amendment, the reach of the commerce clause, etc. and then be asked to explicate that position. There can be no greater test of the nominee's knowledge of the law, scholarship, and most importantly, judicial philosophy.

Nor do I believe that the expression of such views would require recusal if the issue or one similar to it should arise in the future. The sitting Justices have all expressed their views in their prior opinions, and they certainly would not have to recuse themselves if the same or similar issue arose again in a subsequent case. Why then should a nominee for the Supreme Court be in any different position? The hearings now reveal more about the senators asking the questions than the nominee who responds. Let's end this game of Duck, Duck, Goose and make the Senate confirmation hearings meaningful and not just showtime for the senators. Otherwise, just have the nominee send in a note saying: I will decide cases based upon the facts and applicable law and will adhere to precedent.

Comments

[ESerafina42]

One thing they could do to save time and money is to eliminate the pompous, grand-standing 10-minute "opening statements" by every member of the committee. What purpose do these serve except the self-aggrandizement of the Senators?

[Wonderwheel]

Well said! These confirmation hearings are a farce. They won't talke about real issues because they "might come before the court" and they won't talk about abstract isues because they are "hypotheticals." Not only that, but Sotomayor dishonored herself by grovelling before the Republicans and wimpering "Judges don't make law, congress makes laws." Every citizen needs to be told the truth that every judge does indeed make laws, it is called "case law." Congress makes stattory law and judges make case law. Both are as binding on those who all under their scope as the other is. When Republicans tell us that judges shouldn't use empathy and don't make law they are simply using code words for the proposition that courts should not act like the Warren Court did when Earl Warren argued that the people who dominate others will always seek greater domination in society and only the courts can prevent it since congress is too weak and dominated by those very same people..

[Mittzi]

Well said, Thank you your Honor.

The process has become a form of obligatory theatre. The Senators dance around any questions of real substance. It is impossible to analyze hot air.

[TJCole]

Nobody asked if she adheres to the perversion of Corporate "Personhood..!"

That's gonna be real important come September...

They didn't asked if she adheres to the perversion of the Unitary Executive either..!

[Wonderwheel]

TJCole, you hit the bullseye. The whole idea of the so-called "corporate personhood" is judge made law based on a bogus reding of the Constitution. It is as wrong and as little supported by the Constitution as "separate but equal" ever was. But if any Republican was told that "corporate personhood" was the result of "judicial activism" in favor of the big railroad corporations of the post Civil War era they would sputter and trun red choking on the truth.

[Flavor]

If I thought that some of the senators were really caring about these deep questions they are asking Judge Sotomayor, I probably would not say a word about it but I agree with Judge Sarokin on this, I believe these questions are just to get attention. Let me say this to the bloggers flavor don't like abortion, I have said it numerous times, I also realize whether I like it or not it is a law, one that in the seventies the christians did not believe would pass, they said, no way, this will not get thru and no one did a thing and it is a law now. At the time that it pass I was about 5 yrs old, and now they hollor abortion, how can you want a judge that would allow abortion, no she knows the law and how come us christians did not fight in the early seventies when this was trying to become a law. How come so many republicans are hollering abortion and a lot of their own party are fornicating, yes all have sin, and have fallen short, but it amazes me how we have a big timber in our own eye and can't remove that and can sure point out someone elses short fall. Amazing

[WebCommoner]

Flavor, please correct me if I'm wrong, but I think what you're referring to here is "the law" regarding abortion, not abortion as "a law." One thing that people don't understand about abortion is that it was never an actual law. Before Roe v. Wade, there were laws that barred the practice of abortion, but being able to perform them was never proposed as legislation by Congress or signed into law by a president. It was decided in a lawsuit presented to the US Supreme Court in 1971 that the federal government and the states cannot place restrictions on women who want to get one. That precedent, set in Roe v. Wade, is why women are able to seek abortions today, although other court cases over the years have added restrictions. As Sotomayor pointed out in the hearings, judges need a very good reason to override precedence, and the more precedence that exists, the harder it is for judges to justify cause for reversing it. In defense of Christians who deplore the practice, they really had no say in the subject from a standpoint of preventing the Supreme Court from deciding that laws barring abortion are unconstitutional. So, for them, the straightest path to changing "the law" as determined by the Supreme Court in Roe v. Wade is to appoint conservative judges who will actively seek to reverse nearly 40 years of judicial precedence. Yet, according to them, liberals are the ones who want to appoint "activist judges."

[WebCommoner]

My mistake ... Roe v. Wade was in 1973

[onepotatotwopotato]

I would gladly support a CONSERVATIVE "wise Latina woman" who would fight to restore the "Constitution in Exile" to it's proper place in American jurisprudence. http://en.wikipedia.org/wiki/Constitution_in_Exile

[NotImpressed]

"Why can't the nominee be asked: Do you agree or disagree with the Supreme Court's rulings on specific cases involving abortion, states' rights, executive power, the Second Amendment, the reach of the commerce clause, etc. and then be asked to explicate that position."

Because the judiciary is so politicized. Each side is looking for an excuse to reject a nominee from the other side. An answer to "Do you agree with Roe v. Wade?" is pretty close to a guarantee of a successful filibuster.

[Judge H. Lee Sarokin - Huffpost Blogger]

But isn't this precisely the information the Senators want to have and should have before voting?

[sviolette]

Does a nominee know all of the facts of every case that has been heard by Supreme Court? You wouldn't be able to answer questions on any case without all of the facts.

[taikan]

It may be the information the Senate wants to have, but it is not the information the Senate should have, unless you think the function of the Senate's "advise and consent" is to keep someone off the bench if a majority of the Senators disagree with that person's views about a particular case.

Do you honestly think that, prior to 1954, any nominee for a position on the Supreme Court (or any other federal judicial position) could have been confirmed if the nominee said that the decision in Plessy v. Ferguson was incorrect? Do you think it would be appropriate for the Senate to refuse to confirm on that basis if the nominee otherwise were well qualified (by education, experience, etc.) to serve as a federal judge?

[DDK]

Then at least we would have the full public debate on the issue that should occur. If enough senators would filibuster on this issue to derail a SCOTUS nominee that could not go unnoticed at home. Senators on both sides of the issue would have to defend their actions to their respective electorates.

[been2there]

A nominee would be idiotic to give the predators a chance to pounce.

[NationalTreasure]

Judge Sarokin:

a nominee would not want to answer a question in the hypothetical nor articulate a position of settled cases for numerous reasons the most relevant being the politics of the law and the nature of the nomination process as wells the following:

precedent

obfuscate prejudice

the inability to be omniscient

[Wonderwheel]

National Treasure, nominees should answer hypotheticals and should articulate positions on settled cases for numerous reasons. There is only one reason not to, and that is so that the person can be confirmed, because congress is so lame that they can't handle the truth and would cry and wimper if anyone goes to the hearing and tells them the realitiy of how case law is make. Congress does not want to take the curtain down on how case law is made any more than it wants to look behind the curtain of how statutory law is made. Lawmaking in courts and in Congress is an ugly process and most people don't want to be told and would rather keep their illusions. Of course it is true that every judge makes case law and decides cases based on their personal experiences and feelings and empathy. Consevative judges have their empathetic bias for prosecutors over defendants, corporations over consumers, business over environment, etc.but Republicans would have us believe they are making unbiased decisions not based on feelings. What a crock of lies!

[hauty007]

Who cares, the SENATE & House have their own agendas,

for those who believe they represent the citizens, well that's up to you to decide.

[Nanamay]

I have watched all of the Sotomayor hearings. I am fascinated by this glimpse into the workings of the government as it struggles to spend as much time and money as possible on what should take no more than a day or two at most. How many times can a question (usually with an already obvious answer) be asked; how many ways can that question be reworked? I confess to haveing a pre-conceived bias toward Judge Sotomayor being confirmed. Her ability to maintain a calm and reasonable demeanor throughout the procedings is nothing less than heroic. Yes, I understand that a good deal of "prepping" goes on before the actual hearings. But I think this judge would have done just as well had she gone in cold. I look forward to the vote.