Confirming Sotomayor

Watching the two days of quasi-questions and pseudo-answers I formed conflicting impressions of the Sotomayor confirmation hearing. First of course is the falsity of the process, in the sense that the outcome is more or less pre-ordained. The Democratic senators luxuriate in that; the Republicans try vainly to pretend that their votes matter. At the same time, one thinks, how admirable. How American. British readers, I ask you: can you imagine Britain's Law Lords put through a similar grinder? Despite the bloviating self-importance of the senators (most of them anyway) and the elaborate evasions of the nominee, the process is more than mere theater. It's a chance for the public to see the people who rule them tested, and put in danger of making fools of themselves. That's good.

The nominee was composed and impressive. She gave a convincing show of welcoming the opportunity to explain her thinking. She was more likable than I had expected as well, for what that is worth. But she got off easy, don't you think? It seemed to me she did not so much clarify the liberal-sounding speeches and remarks ("wise Latina woman" and so on) that have so preoccupied her critics as simply retract them. And both sides let her do it. In my mind, these serial disavowals kept raising the question: well, what does she actually believe?

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Again and again when substantive issues were posed, her answer was the same: "Congress makes the laws. The job of a judge is to apply the law." Oh please. "The law", as she repeatedly observed, embodies precedent. So when the court laid down those precedents, it was making law on her own definition, was it not? This is not a conservative v liberal thing. Supreme Court justices, conservatives and liberals alike, make law. The worrying thing is that they increasingly strive to make different politically-freighted laws, and have settled into a pattern of closely split decisions along predictable ideological lines. If she was asked about that, I missed it.

Moreover, there are only nine Supreme Court justices and they sit for decades. If confirmed, the unelected and unaccountable Sonia Sotomayor will be a more powerful lawmaker than any of the senators who questioned her. We think we know from her speeches what she thinks about various policies she will be asked to rule on, but this week she wasn't telling, and out of a misguided sense of judicial propriety the senators failed to insist.

On points of substance, almost her entire testimony could have been delivered by John Roberts or Samuel Alito. With names and personal reminiscences redacted, who could tell the difference? It will be interesting to see how often Sotomayor is on the other side of a 5-4 decision from them, despite their purportedly identical "judicial philosophies".