By Neil Siegel, Professor of Law & Political Science, Duke University
Judge Sonia Sotomayor's conduct during her Senate confirmation hearing last week surprised and disappointed a number of progressive constitutionalists. I certainly did not expect her to channel Chief Justice John Roberts to the extent that she did. Nor did I expect Sen. Lindsey Graham (R-S.C.) to be the one to suggest that there is no "legal cookbook" in momentous cases and that justices decide them in part based on their broad vision of who we are as Americans. But before we judge the judge harshly (as I was at first tempted to do), we might pause to consider how we would have advised her had we been responsible for getting her through the process.
I am probably not alone in wanting to imagine Supreme Court confirmation hearings as embodying a democratic moment in which intelligent adults who often disagree reasonably but irreconcilably debate the future course of constitutional law-as in part an educational moment in which the attentive portion of the public learns about the dynamic nature of constitutional law and the role of a justice in American society. But how I want to imagine the hearings has little to do with what the hearings are in fact about these days. Moreover, one treats others as adults at one's peril when one has little reason to believe that they will behave like adults.
These ideas are not conservative, I submit; they are driven instead by the notion that it would be intolerable for unelected judges to act as legislators. The idea that the judge, acting properly, will arrive at a legal answer to a dispute (i.e., one dictated by law) is at the core of some prominent conceptions of the role of judges in a constitutional democracy. Thus, on the right we have Justice Scalia's constitution of rules, which always tells him the right answer. And on the left we have Ronald Dworkin's view that a judge of Herculean ability will arrive at the correct outcome even in hard cases. In neither account do judges exercise strong discretion -- they aren't making policy, they are "doing law." And that is important because both views are driven by a theory of democracy that requires judges to adhere to laws made by folks other than themselves.
orporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.
mayor say repeatedly that the policies and values underlying and supporting the legal text before the Court were key to understanding its meaning and reach. Coupled with her insistence on fully understanding the facts, especially so she could explain to the parties the why-and-how of her analysis and holding, suggests to me an approach that could be most like that of Justice Thurgood Marshall. As I wrote in a brief essay in the John Marshall Law Review, Justice Marshall "considered the gory details of trial records in the light of his own experience and saw things other Justices would overlook, misunderstand, or undervalue."
