Sotomayor Confirmed

6 August 2009

The Senate has confirmed Sonia Sotomayor as Supreme Court Justice today, in a vote of 68 to 31.

I caught a bit of the Senate floor broadcast on C-SPAN the other day, including both supportive and negative statements from the Senators.  The Senators supporting Sotomayor’s confirmation praised her history of even handed decision-making, her reliance on precedent and standing law, her attention to upholding the Constitution, and on avoiding activist decisions.  Those Senators who spoke against her confirmation mostly cited their doubt that she’d be able to put aside her “wise Latina” statement, or any other personal view she has expressed, in favor of following the strict dictates of the law and her responsibilities as a Justice.

Note that those Senators, every last one of ‘em a Republican, who didn’t support Sotomayor didn’t have any proof whatsoever that her personal viewpoints as a Latina or a woman (or any other individual aspect) have affected her decisions on the bench.  These senators, both in their speeches yesterday and in the statements they made during the confirmation hearings, kept saying they saw a schism between those supposedly alarming statements and her admittedly centrist record as a Judge.  Maybe there is a schism, but with no evidence that her wise Latina remark (or anything else) has affected her decisions, where is the problem?

In other words, isn’t that exactly how a responsible Justice should approach their job?  Aren’t they supposed to suspend their own view of the world in favor of the law, the history of the law, and the Constitution?  When a Justice makes a statement based on their personal viewpoint, shouldn’t they leave that narrow perspective at the door when they go to work and decide the cases in front of them?

Certainly every Justice we’ve ever had sitting on the Supreme Court has held a wide variety of personal viewpoints, on issues of the day like race or religion, class or gender, and on broader issues like what the Constitution means, or what the role of government should be in the United States.  And certainly, no human can completely divorce themselves from their world view. 

Still, some separation is not just desirable, but appropriate.  What I want in a Justice or Judge is someone who, regardless of their personal views, approaches their cases with every intent of valuing the law above any personal viewpoint they hold.  I want them to look at what has gone down before, and make decisions rooted in precedent and existing law.  I want them to leave law-making to our elected representatives, as much as they can.  Their job is to decide based on the law created in Congress or state Legislatures, not to rule in favor of their own ideas about what is right and wrong.

In Sonia Sotomayor, I believe we have Justice who will approach the cases before her in a considered manner, referencing what has been decided in the past, looking strictly at what is before her rather than making sweeping politicized decisions, trying to further the purpose of the Constitution.  I don’t think she will always decide things as I would, as a citizen looking at issues through the lens of my own experience, and I don’t expect to always be happy with her decisions.  What I do think I can rely on is that she will approach each case carefully and as objectively as humanly possible.

The Confirmation Hearings

18 July 2009

I’ve been watching government hearings most of my life.  It started back in the Nixon era with the Watergate hearings, and along with the rest of my family, I remain glued to the TV as much as possible, gleaning what I could from the probing questions and careful, cagey answers unfolding over the hours.

Since that time, it’s mostly been Senate confirmation hearings of the cabinet nominees, potential Supreme Court justices, and the like.  Hearings tend to be ponderous — perhaps even outright boring — but for some reason they interest me, even when it’s just to catch highlights.  But I perhaps have never been so devoted to following hearings (at least, not since Watergate) as I have been over the last few days, as I’ve tuned in to Sonia Sotomayor’s Senate hearings for confirmation to Supreme Court Justice.  At this writing I’ve watched pretty much every moment of the first three days, and snippets of day 4, and I will undoubtedly catch up on what I’ve missed this weekend.

Why, one might ask?  I certainly have asked myself that question.

Well, my original intent was to tune in, here and there through the days, to see how the Republican and Democratic philosophies of governance and justice played out.  Well, to be fair, I thought what the Senators would reveal is how they wished to "market" their philosophies, how they wished us to view their perspectives.

I got that, and more, from the hearings.  Though I agree with many journalists who’ve said that Sotomayor didn’t really reveal much to us about what she thinks of the burning issues of our day, she did indeed reveal a lot about how she thinks the law should be approached by judges.  And in the process, I received a basic lesson in how the Supremes must approach cases, given their job description.

If I understand things more or less correctly, it is a rare moment when an appeals judge or a justice of the Supreme Court is faced with a simple "right or wrong" question about the basis for a case.  They aren’t asked to decide "did this guy commit murder?" or "is this indeed the woman who robbed the bank?"  Instead, they must decide whether those who charged the accused, or those who defended them, or those who judged them at lower levels of the court, have acted in accordance with already-decided laws, and of course most importantly, with the Constitution of the United States.  Frustrating thing, justice.  Someone might have indeed committed murder, or robbed a bank, but if the people charged with bringing them to court screw up and don’t follow the law, the case is no good, and the appeals court or Supreme Courts may overturn lower rulings if they see the rules haven’t been followed.  The judges and justices of the higher level courts do this not to piss us off, but because that is their charged duty.  Their job seems rarely involved actually deciding the big issue itself.

This aspect of the Supreme Court — that they decide whether law has been applied correctly, not the case itself — was perhaps already obvious to others, but I’d never really thought about it.

In any case, the Senators repeatedly asked Sotomayor to share her absolute opinions on issues like abortion, self-defense, gun rights, gay marriage and so on.  If she has them, she keeps them private, for the most part.  In pretty much every case, she refused to provide a direct answer about a particular issue, on the basis that she couldn’t give an opinion in the abstract, and on a number of these more controversial issues, refused because those very issues were likely to come before the Supreme Court and any opining done at the hearing could be used to infer a prejudiced view one way or the other.

On the other hand, she was quite eloquent in describing the details of cases and decisions she’d had in front of her (and which were decided and not pending appeal).  This provided strange contrast with her cautiously evasive answers to the issue questions.  I, by the way, think was was smart to do so, because there was at least some direct, detailed discussion to balance out the repeated "I can’t answer that in the abstract" and "I can’t comment on that because it may come before me."  Though case-specific, I did understand her approach to law from her answers:  she strict about looking at precedent and constitutional law, doesn’t believe in judges creating new interpretations without a damn good cause, and considers her cases… well… case by case.  In other words, exactly what we want in a person sitting on the Supreme Court.

Much was made of the "wise latina" statement, and there a few other annoying themes that the more conservative Senators drilled her on.  But the essence of her careful responses revealed her, I think, to be a careful and cautious judge, one who considers the cases before her methodically, and with great deference to those who’ve shaped the law before her — the Founders, the Congress and state legislatures, and the judges who’ve decided past cases.

I was impressed.  I was impressed that she never showed a moment of irritation, though I noted the many pauses she took after yet another Senator’s question on something gone over numerous times before.  Early in the hearings, I imagined that she was most likely assembling her careful reply.  Later on, I wondered if her focus was on trying to say the same damn thing in a different way just to avoid sounding like a broken record.  She seemed patient, and considered her answers carefully, and yet opened up a different aspect of her personality when she laughed with the Senators over a quip here, a baseball or Perry Mason reference there.

A test of my impression from the hearings:  If I were party to a case that came before her, I might wonder whether she would decide in my favor — I am not so convinced that she is entirely liberal in her outlook.  However, wouldn’t doubt that she would look at my case carefully, and only apply the law to the case, not her personal view on the situation.

Essentially, what I gleaned was that Sotomayor will be a Justice we can trust to honor the Constitution.