New York, August 18, 2009 -- That Justice Sonia Sotomayor revealed little about her judicial philosophy or much else during her U.S. Supreme Court confirmation hearings came as no surprise to those who have watched these proceedings over the last two decades.
And experts at Columbia Law School say we should expect more of the same from future nominees, as politics and the independence of the judiciary run up against each other.
“It’s not the way I think we would choose to do things, but we haven’t found our way out of it,” said Professor Theodore B. Shaw.
To many, the confirmation process was little more than political theatre. All of the players knew how it would end, but recited their lines anyway. As Associate Professor Jamal Greene sees it, nominees would be better off if they never even testify.
“I don’t think that additional engagement is ever going to happen. I think you just have to lower your expectations,” he said. “I think if we did lower our expectations maybe nominees would be comfortable answering questions that don’t have any political chance of dooming their confirmation.”
As Professor Daniel Richman noted, “The idea we should be getting deep insights into a person’s ideology when they’re a sitting judge is a huge stretch.”
That members of the Senate Judiciary Committee, particularly those in the minority, would closely scrutinize a candidate is to be expected. What is a relatively recent phenomenon, however, is the level of partisan rancor that has made nominees more reticent. Professors trace that to the failed 1987 nomination by President Reagan of Robert Bork to the Supreme Court.
As soon as Bork’s name was announced, Democrats attacked him for being too far to the right on social issues and overly deferential to the Executive Branch. The Democrat-controlled Senate rejected his nomination by a 58-42 vote.
Since then, Supreme Court nominees have generally avoided saying much, if anything, about hot-button issues. Sotomayor, for example, said “many senators have asked me about my judicial philosophy. It is simple: Fidelity to the law.” She went on to deflect virtually all attempts to engage in substantive legal discussions. That was by design, said Associate Professor Olatunde Johnson.
“What is there to be gained from disclosing your views and opening up yourself to criticisms from one side or the other?” Johnson said.
Despite the lack of revelations and “highly politicized” atmosphere, Susan P. Sturm, George M. Jaffin Professor of Law and Social Responsibility, said the hearings were valuable in opening a window for the public to learn more about Sotomayor as a person.
“We got a sense of her temperament under fire. We got a sense of her experience as a judge and a lawyer and we got an understanding of her command of the law,” Sturm said.
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