08/16/2009 05:12 am ET Updated May 25, 2011

Sotomayor Hearings are Political Bullsh*t

Senate confirmation hearings on judicial nominations have devolved into almost total bullshit. They're a form of Kabuki Theater in which everyone plays their assigned roles and no one tells the whole truth.

A bunch of middle aged white Republican men try to depict Judge Sonia Sotomayor as an angry Latina woman who wants to ignore the law in order to oppress white men. Bullshit! Sotomayor has a 17 year record as a moderate and incrementalist judge who generally rules on the most narrow possible grounds. Sotomayor and her Democratic supporters respond that Sotomayor's life experience will have absolutely zero impact in the way she evaluates hard cases and repeat ad naseum that she will just apply the law to the facts and that "the role of a judge is to interpret the law and not make the law." That's a truism, but it's hardly the whole truth. Without further inquiry, it's almost as much bullshit.

The real question, which neither Republican nor Democratic Senators want to touch, is how does a judge decide what the law is and which facts are relevant? What judicial philosophy does she bring to the process of making those decisions and what impact is it likely to have on the rights of Americans?

Any first year law student understands that, but none of the seasoned lawyers at the Senate hearings seem willing to publicly acknowledge it.

Here's a classic example from a first year law school class on legal interpretation:

A 19th century town faces the problem that people are driving their horse and buggies through the park and injuring small children who are playing there. It passes a law that states "No vehicle shall be driven in the park". Fifty years later, the automobile is invented, and a young man shows off his shiny new Model T by speeding through the park as children scatter, whereupon he's arrested and brought before a judge. His lawyer's defense is that the law must be interpreted according to the intent of those who enacted it, and at that time, the only vehicle they were thinking about was the horse and buggy and had never even heard of an automobile, so they could not have intended for the law to apply to an automobile. The prosecutor responds that the law must be interpreted according to its underlying purpose, which was to protect children from dangerous vehicles, and even though the framers of the law weren't thinking about automobiles, it clearly applies to such new inventions.

According to the Senate Judiciary Committee, the judge is supposed to apply the facts and interpret the law, not make the law. But given this new set of facts, how does the judge decide what the law is?

In somewhat simplistic terms, this hypothetical sets forth two different philosophies of legal and Constitutional interpretation. The defense lawyer's argument is closely akin to the "originalism" of such conservative Justices as Scalia and Alito. As Alito said in his own confirmation hearing, "In interpreting the Constitution, I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." If one takes Alito's quote seriously as embodying his judicial philosophy, the driver of the car should be innocent of breaking the law since an automobile could not have been part of the meaning that someone would have taken from the text of the law at the time of its adoption.

Other judicial philosophies see the law and the Constitution as evolving, and while still limited by the underlying purpose of the drafters, it evolves as society and the underlying facts evolve. Someone with that judicial philosophy might find that, since the underlying purpose of the above law was to protect children from dangerous moving vehicles, it applies as much to cars as to the horse and buggy, even though the framers of the law could not possibly have been thinking about cars at the time of the law's adoption.

In many areas, the Constitution (and statutes) set out broad principles and a judge's judicial philosophy determines how she will go about interpreting these broad principles and deciding what the law is. Is it "cruel and unusual punishment" to execute a 15 year old? Does warrantless wiretapping of American citizens authorized solely by the President constitute an "unreasonable search and seizure"? Does the display of sectarian religious symbols in a government building or the teaching of "intelligent design" in public school science classes constitute "the establishment of religion?" Does affirmative action for historically oppressed groups promote or violate the "equal protection of the law" or discriminate against white people? Does Congress's constitutional power over "interstate commerce" encompass the banning of machine guns near schools or the protection of endangered species? Does the Constitution, which does not use the word "privacy", nevertheless imply a right of privacy which entitles a woman to make her own decision about an abortion? Does a recount in Florida, which could determine the outcome of a presidential election, constitute a violation of the "equal protection of the law"? A Judge's judicial philosophy helps decide the answers to these questions and profoundly affects the rights of millions of Americans.

Justice Stephen Breyer recently published a book advocating a judicial philosophy that suggests that the liberty protected by the Constitution includes not only freedom from undue governmental interference but also an active freedom to participate in self-government as an equal. Thus Breyer might be inclined to find campaign finance limitations constitutional by making it more likely that individual citizens, whether rich or poor, will have an equal voice in influencing the political process. A conservative jurist might find that money is a form of speech, that a corporation is a legal person, and that restrictions on corporations spending infinite sums on political campaigns infringes their First Amendment rights.

"Originalists" like Scalia and Alito believe Constitutional decision making should be governed by how the Framers would have decided the issue at the time the constitution was written. Thus an originalist is more likely to find that most forms of capital punishment do not constitute cruel and unusual punishment since capital punishment was common practice at the time the Constitution was written. She might decide that the equal protection clause of the 14th Amendment provides little protection to women (and certainly gay people) against discrimination since the authors of the 14th Amendment were only thinking about the rights of the freed slaves. She would be skeptical that the Constitution provides a right of privacy that encompasses such intimate areas as a woman's decision of whether or not to bare a child since the Constitution never uses the words "privacy" or "abortion". Notice, by the way, that an "originalist" constitutional philosophy will more often than not lead to a conservative decision which restricts rather than adds new rights for discriminated against groups (e.g. women, immigrants, the disabled) since these rights did not exist at the time the constitution was first written. One wonders if so-called "originalists" decided on the result they wanted and then came up with a judicial philosophy to justify it.

For example, we learned little about John Robert's judicial philosophy during his hearings, only that he claimed his jurisprudence would be humble and modest and that he believed a judge is like an umpire calling balls and strikes, as if deciding whether or not a pitch is over the plate between the batter's knees and shoulders is the same as deciding the meaning of "equal protection under the law" or the "establishment of religion". This was bullshit. In Justice Robert's case, when he applies his deceptive umpire analogy to judging, the Yankees always seem to win. As CNN analyst Jeffrey Toobin reported in a recent New Yorker article:

"Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

Are we really to believe that the background of Justice Roberts--who went to private boarding school, worked in the Reagan White House to undo the influence of the Warren Supreme Court, and represented the interests of big corporations as a private litigator--has no impact on his rulings? On the other hand, isn't it likely that having a woman on the Supreme Court might have an impact on how the Justices view the recent case in which they decided 8-1 that Arizona school officials violated the constitutional rights of a 13-year old girl when they strip-searched her on suspicion that she might be hiding ibuprofen in her underwear? "They have never been a 13-year old girl," Justice Ruth Bader Ginsburg told USA Today when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think my colleagues, some of them, quite understood".

It's not that a judge's background is determinative of the outcome in any particular case. But it's bullshit when Republican Senators claim that a judiciary with a healthy representation of women and minorities will, or should, always come to the same conclusion as a judiciary made up entirely of white men, as the Supreme Court has been for most of its history. It's bullshit, too, when Democratic Senators join with Republican Senators in claiming that a judge just interprets the law, without looking at the judicial philosophy she uses to go about that interpretation.

The Senate confirmation hearings are telling us little more about Sonia Sotomayor's judicial philosophy than they told us about John Roberts' or Samuel Alito's judicial philosophy. We assume, because of her ethnicity, and because President Obama appointed her, that she will generally side with the Court's more liberal bloc. But it's just a guess. Justice Black was once associated with the Ku Klux Klan but became one the strongest supporters of civil rights on the Court. Justice White, who was appointed by JFK, often sided with the Court's conservatives. Justice Souter, who was appointed by the first President Bush, evolved into one of the Court's more liberal members.

We deserve to know more about Judge Sotomayor's judicial philosophy. Unfortunately, in the bullshit that now passes for Senate confirmation hearings, we're unlikely to find out.