July 17, 2009--Speak Capably, Say Little

This is the advice for their Senate conformation hearings Supreme Court nominees have been given since at least 1987 when Ronald Regan's nominee Robert Bork got, well, borked--beat up and rejected. (See New York Times article linked below.)

Sonia Sotomayor took this advice so well to heart that after four days of hearings I know nothing more about her than I did a month ago. And that's too bad.

This bright, tough-minded, complicated, aggressive, and yes passionate and empathetic person came across as so vapid, so numbingly boring that while watching the hearings on TV I kept falling asleep. And not only when Arlen Specter was droning on. Rather, during Judge Sotomayor herself's so-called answers. And to tell the truth, news and political junkie that I am, I couldn't watch more than a total of a couple of hours of it.

What has brought us to this point? Years ago these hearings were feisty, intelligent interchanges between Senators who actually know something about the Constitution and the law and nominees who were distinguished legal scholars, judges with noteworthy records of published opinions, or political leaders of substance. Not all, to be sure, but enough to make one, after listening to or reading about the hearings, feel that the person about to join the Supreme Court, agree with him or not, was a person of thought and gravitas.

But then President Reagan nominated Robert Bork and everything changed. Within literally 45 minutes of that nomination, Senator Ted Kennedy took to the floor of the Senate and said--

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

Bork went on not to be confirmed by a vote of 42 to 58. And now we have hearings like the one that was held this week with the Senators posturing and pontificating while the nominee declined in a monotone to say anything specific about even her own record of decisions; and she was so over-coached that she spoke relentlessly in generalities and wound up effectively disavowing who she was and is. I know the drill--she is a shoe-in to be confirmed and didn't want to screw anything up.

She is in fact an unusual post-Bork nominee--she has been a federal judge for so many years that she has participated in about 3,000 decisions, a record Democratic senators couldn't restrain themselves from proudly pointing out at least 20 times, making sure everyone knew that we haven't seen anyone this experienced in "almost 100 years" (actually 80)--because others nominated since that ugly Bork battle have been so uncontroversial (with the exception of Clarence Thomas who was credibly accused of being a sexual harasser) that there is nothing much on the record about which to pick them apart. It is as though these jurists from the time they left law school began dreaming about one day being nominated to the Supreme Court; and, with Bork in mind, spent decades avoiding doing or saying anything, forget controversial, anything about the hot subjects that could get them in trouble during a confirmation hearing. They have been exquisitely careful not to lay down any tracks about what they might think, or worse rule, regarding abortion, affirmative action, judicial activism, privacy, sexuality, executive privilege, gun rights, or the death penalty.

This I can live with--it is not appropriate to say much about specific issues that are likely to come before the court. But shouldn't the senators and the rest of us at least get a glimpse of a nominee's quality of mind, how she or he thinks about a complicated subject, how philosophically they would approach and interpret the Constitution? A little sharing of one's intellectual history and core values would be good to know about.

What a week of civics lessons that would have been. A refresher course on the Constitution and the institutions that are at the heart of this nation. How laws are made and interpreted and reinterpreted. The shifting relationship between the government and the people. In other words, a sprightly debate at the highest level of discourse--just what we should expect from the people who represent us.

But then the Congress and the media would not have had the gotcha opportunity to talk and ruminate endlessly about what she really meant when she said that being Latina gave her a valuable perspective on cases that have come before her and whether or not she has a "temperament" problem of the sort that Lindsey Graham patronizingly said she needs to "work on."