Sotomayor’s Testimony Generally

And now, let’s take a general look at Judge Sonia Sotomayor’s testimony before the Senate Judiciary Committee. Although it’s difficult to be impressed with how the hearings are conducted these days, it wasn’t difficult to be impressed with Sotomayor.

She exuded competence, intellect, confidence, and reasonableness. She was calm and humble. She was courteous, gracious, and charming. She stayed focused and seemed to intently listen to each senator’s question, even when the question had been asked several times before. She was unflappable.

Her knowledge of a whole host of legal issues and areas of the law and her ability to articulate this knowledge were striking. She was able to discuss most specific cases about which she was asked, sometimes in remarkable detail. On the rare occasions when she was unfamiliar with a case or hadn’t reviewed the case recently, she said so. Her preparation was exemplary.

Unfortunately, she had watched all previous confirmation hearings going back to Judge Bork’s in 1987 and modeled her testimony accordingly. She dodged all tough questions by saying that she didn’t want to prejudge any issue that might come before her as a member of the Supreme Court. She flatly contradicted previous statements she had made but wished she hadn’t by saying her statements had been misunderstood, didn’t really say what they said when read in a revisionist context, and didn’t really mean what they sounded like they meant. If she had it to do over, she would use different words, and she apologized if these words had offended anyone.

Since she characterized herself as a tough judge, often asking probing questions, it’s fair to say that she would have held herself in contempt several times had she been testifying in her own court. A judge like Sotomayor demands that witnesses answer questions directly, sometimes with a simple yes or no.

Finally, she said what has become obligatory for all nominees to say. As a Supreme Court justice, she wouldn’t make law. She wouldn’t make policy. She wouldn’t read new rights into the Constitution. She wouldn’t let personal opinions influence her rulings. She wouldn’t use subjective judgment. She would have a completely open mind about all issues that come before her.

Of course, these are wonderful ideals, and I suppose it’s possible for a judge to convince herself that she always upholds those ideals. Sotomayor certainly expressed them with the utmost sincerity.

Everyone knows that the Supreme Court sometimes makes law. It often makes policy. It occasionally discovers new rights. Since justices are human, personal opinions and subjective judgement do influence their judicial decisions. No one has a completely open mind. But when one is a nominee to the Supreme Court, he or she can’t say what everyone knows.

Next, a look at what Sotomayor’s testimony says about the future of labor and employment law.