06/28/2010 07:32 pm ET Updated May 25, 2011

The Hypocrisy of Senate Judicial Confirmation Hearings

Can you imagine a trial in which either the judge or the jury commenced the proceedings by announcing or hinting at their verdicts and then calling for the submission of evidence?! True, the Senate hearing on a judicial nominee is not a trial, but it certainly is akin to one. The purpose is to take testimony and then reach a conclusion after hearing all of the evidence. With all of the pontificating about the need for judges and justices to be fair and impartial and leave their biases at the door, the senators do just the opposite. They come to the hearing predisposed to decide in a certain way and they are more persuaded by their own pronouncements and questions than the answers of the nominee.

I wrote the foregoing paragraph after the first day of the Sotomayor hearing. Nothing has changed. Each Republican Senator repeats the litany that they do not want activist justices, but rather ones that interpret the law --- not make it. What they really mean is that they do not want judges or justices who render decisions with which they do not agree. Conferring free speech upon corporations; allowing guns in every household do not constitute activism -- just calling balls and strike in the words of Chief Justice Roberts.

If "calling balls and strikes" means that that there is a right or wrong call in each case, then I disagree with the analogy. If, on the other hand, it means that judgment calls are being made, that the strike zone (interpretation of the Constitution) is narrow or broad based upon the individual judgment of the justice, then I agree. Personal philosophy and policy clearly enter in to the process. When cases reach the Supreme Court inevitably there are valid arguments on both sides. The fact that four justices frequently disagree with the majority is clear evidence of such validity. One vote cannot possibly make a judgment right or wrong. It is frequently a choice between two right arguments, rather than one right and one wrong.

It is totally unrealistic to believe that justices of the Supreme Court view their duty as some robotic application of the law or Constitution to the facts before them. If they do not consider what impact corporate money will have upon elections or the presence of guns will have upon personal safety, they should not be sitting on the Supreme Court. If personal philosophy and policy does not play a part in the decision making process, how else does one explain the consistency and predictability of the court split. What is true of both political parties is that they want justices whom they hope will decide cases in the manner they wish.

General Kagan is being condemned for her admiration of Justice Thurgood Marshall. Doesn't that say it all for the Republicans: We like our activism better than yours.