Sotomayor Confirmation Hearings

I have now listened to every single bit of Sonia Sotomayor’s testimony before the Senate Judiciary Committee. (Click here, here, here and here.) I didn’t listen to the testimony of other witnesses. I didn’t listen to the opening statements by members of the Committee, much of which I’m pretty sure they restated during their questioning of Sotomayor. I wouldn’t listen to all her testimony if I had it to do over.

Having listened to it, however, in furtherance of my previoius posts on Sotomayor’s possible impact as a Supreme Court Justice (particularly in the labor and employment law area), I feel compelled to do a few more posts based on her confirmation hearings. I’ll do this one about the hearings themselves; another one about Sotomayor’s testimony generally; and a final one on what we learned from her testimony about her approach to labor and employment law.

I wouldn’t listen to all of Sotomayor’s testimony again, because the hearings for a Supreme Court nominee have become a carefully scripted event. There’s no chance of learning much new. One could argue there’s no chance of learning much at all.

As I mentioned in a previous post, this all began after the hearings on Robert Bork’s doomed nomination in 1987. Since then, all of the nominees actually given hearings have sounded more and more alike. They can’t or won’t answer most of the questions because they don’t want anyone to think they’ve prejudged an issue that may come before them if they are confirmed. They all believe that our Constitution is the be-all and end-all of our legal system. They will faithfully follow the Constitution. They don’t believe that justices on the Court should make law; that’s the job of Congress. They pay homage to the rule of law. Etc., etc., etc.

Nominees are increasingly treated like royalty. They must be shown utmost respect. Don’t dare use a sharp or disbelieving tone when questioning a nominee. If nominees refuse to answer a question, move on to the next one. If their testimony contradicts something they’ve said previously, accept whatever explanation they offer. Genuflect before one’s questioning begins. Sotomayor might as well have been the Queen of England. John Roberts and Samuel Alito might as well have been the King of England when their confirmation hearings were held. The founders are surely spinning in their graves.

The Judiciary Committee members who are part of the majority party ask questions filled with adoration. They might as well ask, “Isn’t it true that you are a great American?” And the nominee can answer, “Well, that’s not for me to say, but I’ve always tried to be.” The members of the minority party ask questions about suspicions, alleged contradictions, and concerns — all within the the scripted framework of showing servile abasement over learning some new truth about the nominee.

The hearings have become more or less meaningless efforts to loosely determine whether the nominee is left-leaning or right-leaning. Based on the way the hearings are now conducted, however, there’s no way for either side to know — not based on the nominee’s testimony. Some of them think they know, but it’ll take two or three years to find out.

Recently, I listened to a TV news show on which a lawyer was introduced as an expert on the Supreme Court. He opined that Sotomayor would be confirmed in light of how well she had held up after three days of withering questions. I could only conclude that he had never tried a case. Upon further reflection, I concluded that he had never seen the trial of a case. The withering questioning of a witness can be done with enlightening precision and due respect — just not during the confirmation hearings of a Supreme Court nominee.

Sotomayor will certainly be confirmed, and she should be, based on the standards for confirmation hearings used today. In light of my above critique, you might say there’s no need for me to post anything else. Though that may be accurate, I’m going to post on. In fact, there are a few additional points, albeit relatively minor, worth making about Sotomayor’s testimony and about her probable influence on labor and employment law. And, after all, I did listen to every single bit of her testimony.

Stay tuned.

1. 

   John Phillips says:

   July 24, 2009 at 10:53 am

   Michael Wade of Execupundit has linked to this post, with a note worth noting as a comment.

   http://www.execupundit.com/2009/07/sotomayor-and-senators.html#links