Answers to Questions
by Jeffrey Toobin
The New Yorker
July 27, 2009
In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.
In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.
The process evolved this way as a response to a political, not a legal, problem. In 1987, Robert Bork engaged the Judiciary Committee in a substantive discussion of his judicial philosophy, and the Senate, quite properly, voted him down, because of his narrow conception of the protections enshrined in the Bill of Rights. From this example, Supreme Court nominees took the lesson that the less said the better, and beginning with Anthony Kennedy, who succeeded Bork, nominees have taken to suggesting that simple fidelity to the law was the primary work of a Justice. The stonewalling has been bipartisan, from Ruth Bader Ginsburg, who testified that “a judge sworn to decide impartially can offer no forecasts, no hints,” to Samuel Alito, who ducked questions about abortion rights by saying, “It is an issue that is involved in litigation now at all levels.” Accordingly, Sotomayor asserted that she will follow Supreme Court precedent and keep an “open mind.” (Though, when it comes to interpreting the Constitution, one can scarcely imagine a worse qualification than an open mind. The issues are difficult and profound and require a lifetime of study to master, and one would hope that Justices arrive with heads full of firm ideas about the document they are charged with understanding.)
Still, watching a Supreme Court confirmation hearing is not a completely unedifying experience. The tableau of the first Hispanic nominee to the Court—a veteran judge of impeccable professional and academic credentials—addressing the Judiciary Committee was a satisfying one for those who care about a diverse and inclusive society. The best barometer of the current moment in law and politics, however, came not from the Judge’s answers but from the senators’ questions—the ones they chose not to ask as well as the ones they did.
(More here.)
The New Yorker
July 27, 2009
In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.
In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.
The process evolved this way as a response to a political, not a legal, problem. In 1987, Robert Bork engaged the Judiciary Committee in a substantive discussion of his judicial philosophy, and the Senate, quite properly, voted him down, because of his narrow conception of the protections enshrined in the Bill of Rights. From this example, Supreme Court nominees took the lesson that the less said the better, and beginning with Anthony Kennedy, who succeeded Bork, nominees have taken to suggesting that simple fidelity to the law was the primary work of a Justice. The stonewalling has been bipartisan, from Ruth Bader Ginsburg, who testified that “a judge sworn to decide impartially can offer no forecasts, no hints,” to Samuel Alito, who ducked questions about abortion rights by saying, “It is an issue that is involved in litigation now at all levels.” Accordingly, Sotomayor asserted that she will follow Supreme Court precedent and keep an “open mind.” (Though, when it comes to interpreting the Constitution, one can scarcely imagine a worse qualification than an open mind. The issues are difficult and profound and require a lifetime of study to master, and one would hope that Justices arrive with heads full of firm ideas about the document they are charged with understanding.)
Still, watching a Supreme Court confirmation hearing is not a completely unedifying experience. The tableau of the first Hispanic nominee to the Court—a veteran judge of impeccable professional and academic credentials—addressing the Judiciary Committee was a satisfying one for those who care about a diverse and inclusive society. The best barometer of the current moment in law and politics, however, came not from the Judge’s answers but from the senators’ questions—the ones they chose not to ask as well as the ones they did.
(More here.)
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