SCOTUS Hearings Are All The Same

Well, it's important to remember that, as a judge, I don't make law. And so the task for me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations.

With respect to Judge Sotomayor and her defenders, explain how this paragraph, taken from this morning's proceedings,  is not tautological and circular. Of course judges accept new theories. All of them do. Pretending they don't is a feature of American life limited to the twenty hours a year the Senate Judiciary Committee investigates the legal mind of the next Supreme Court justices. (Thanks to Justice R.B. Ginsburg for originating this type of performance.)  The advise and consent function of the Senate has turned into a "provide comfort" function that sets up political precedents ("Well, when Obama nominated Judge Sotomayor, she promised she wouldn't make new law, and look what happened!"). Of course there are differences between justices; take Sandra Day O'Connor's minimalism and John Paul Stevens' activism.  In theory, these hearings are supposed to help us figure these out. Instead, they're designed to squish everyone into some supposed middle ground where judicial theories and environmental predispositions never matter (except when they do.)  That leads to absurdity all around: Senator John Kyl being unaware that white guys bring their perspective to situations, or Patrick Leahy patiently coaching Sotomayor through her days a facts only, mam, prosecutor.  Sotomayor won't tell anyone what she thinks about executive power, or anti-trust law, or late-term abortions. Instead, we're supposed to judge her temperament and mien, as if that's the only reason why she was chosen -- as if that's the only predictive information available to those who want to figure out what kind of justice she will be.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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