This article first appeared in the St. Louis Beacon, July 17, 2009 - By all accounts, Judge Sonia Sotomayor did so well during her confirmation hearing that her quick confirmation is a foregone conclusion.
But was the confirmation process a success as a civic exercise? Was Sotomayor able to say what she really believes about the role of experience in decision-making or the role of judges in policy-making? Was Sotomayor able to talk about empathy in the same way that a male nominee talked about empathy? Did the senators ask clear, succinct questions designed to elicit information? Do the American people have a better idea today than before the hearing about who Sotomayor is and how the U.S. Supreme Court works?
Unfortunately, the answers are probably no, no, no, no and no. The Senate Judiciary Committee's confirmation process is a strange ritual in which the political realities and the conventions of behavior often frustrate genuine enlightenment. Roger Goldman, a law professor at Saint Louis University, calls it a "Kabuki dance."
Goldman pointed out early in the hearings that Sotomayor had learned the lesson of Robert Bork's failed confirmation. A brilliant if controversial judge and constitutional scholar, Bork thought he needed to do little to prepare for the hearing, and he relished a robust debate. Bork was not confirmed, partly because he was too candid. Sotomayor, like nominees since Bork, mostly gave answers that she knew the committee wanted to hear.
She backed away from her statements about a "wise Latina" judge, about experience affecting judicial decision-making and about judges making policy. She also distanced herself from President Barack Obama's statements about empathy and close cases being decided from the heart.
As much as one might believe that Lady Justice should be blind, one truly would have to be blindfolded to think that a judge's experience did not affect judicial outcomes.
Goldman pointed to two cases. One was the recent one involving the schoohouse strip-search of an 8th-grade girl who was told to strip to her underwear and then to pull her bra and panties away from her body. During oral argument, Justice Stephen Breyer joked, "When I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day. We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear."
Justice Ruth Bader Ginsburg laughed along with others. But she later made an unusual comment in USA Today about her fellow justices: "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
Most of the justices understood by the time the court ruled last month that the search was unconstitutional, although Justice Clarence Thomas wrote an awkward dissent that suggested he had not gotten the message.
The other case Goldman referred to was from the 1970s when Justice Harry Blackmun suggested that even a poor person should be able to put together the $50 needed to file for bankruptcy. Justice Thurgood Marshal excoriated the court in his dissent, writing that the justices didn't know how poor people lived, writing, "a pack or two of cigarettes may be ... not a routine purchase but a luxury. ... It is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live."
The wise Latina comment had been a takeoff on a comment by former Justice Sandra Day O'Connor, who once said she hoped "a wise old man and a wise old woman often reach the same conclusion." Yet O'Connor herself has spoken about the impact that Thurgood Marshall had on her appreciation of race. She said, "At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth."
O'Connor herself cast some of her most liberal and decisive votes on issues involving women, from abortion, to affirmative action to sex discrimination, like that she experienced when she left Stanford law school and couldn't get a job as a lawyer.
Laura Rosenbury, a law professor at Washington University, thinks that Sotomayor's gender may be one reason that she had to retreat from Obama's emphasis on the importance of empathy to a justice.
"I think Sotomayor's comments distancing herself from Obama are all about gender: Men can talk about feelings and empathy but women can't without reinforcing negative stereotypes attaching to women as a class," she wrote in an email.
Rosenbury thinks that Sotomayor's gender may also have caused observers, including this one, to see her as less skilled than Chief Justice John Roberts during his confirmation hearings. "I think people are scrutinizing Sotomayor more closely than Roberts," she wrote. "That is the only difference between their first days."
One other gender-related difference in the press coverage was the descriptions of Sotomayor's blue and then red outfits. Descriptions of Roberts' attire were rare. Sotomayor did have a ready guy's line for the umpire-obsessed senators, however -- her frequent fallback to her love of baseball and the New York Yankees.
Sotomayor also was ready when she was asked about her comment about judges making policy. She said she had meant only that precedent is policy.
But many judges and legal scholars agree that judges make policy. Sheila Simon, a law professor at Southern Illinois University Carbondale, put it this way shortly after Sotomayor was nominated: "I think she's exactly right on the policy point. The courts are not the primary place where policy is made, but they certainly are one location. To say anything else is just closing your eyes to the obvious."
Laws contain words that need to be interpreted. In addition, the words of a statute often do not answer a legal question. The New Haven firefighters' case was a good example. One kind of discrimination outlawed by Title VII of the Civil Rights Act suggested that New Haven's promotions test was discriminatory because it had a disparate impact on black firefighters, who did not score high enough for promotion. Another kind of discrimination outlawed by the same law makes disparate treatment based on race illegal. Under that kind of discrimination, the city couldn't treat treat white firefighters differently by throwing out the test on which they had performed well.
In the end, the Supreme Court decided 5-4 that the white firefighters should win. One could argue that the answer was not found in the words of the law or the rules of statutory construction, but rather in hearts of the justices, with the majority more empathetic to the white firefighters and the dissenters more empathetic to the black firefiighters.
One of the great weaknesses of confirmation hearings is that senators are often more interested in making political speeches than listening to answers. Two of the most egregious speech makers -- Joseph Biden and Edward M. Kennedy -- were not present for Sotomayor's hearing. But the senators who were there did their best to make up for their colleagues' absences.
"Often the statements of the senators are used to raise money for political causes and campaigns," Goldman said. Tom Goldstein, who blogged the hearings for Scotusblog, noted that senators often didn't listen for answers before going on with the next prepared question.
One of the funniest examples of a clueless questions was the question from Sen. Patrick Leahy, D-Vt., about a Second Amendment case involving nunchucks, a martial arts weapon. Leahy mispronounced and stammered over the term for the two pieces of wood connected by a cord or rope.
This must have sounded funny to young Americans who remember Napolean Dynamite, the movie character, whose comments about nunchucks was part of what made the movie a cult favorite. Commenting on skills attractive for girls he said, "You know, like nunchuku skills, bow hunting skills, computer hacking skills... Girls only want boyfriends who have great skills."
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.
