Some Quick Thoughts on the Sotomayor Hearings

Nothing has happened so far today that was unexpected. The most effective monologue, in my opinion, was made by Lindsey Graham. Graham, who appears headed toward voting in favor of Sotomayor, said he was bothered by the idea that someone in a robe could think their sex and ethnicity would make them a better judge than another. Graham also said that he would likely defer to the will of the president because in his words "elections have consequences".

While there was little drama in these hearings, there was plenty of strategy. You could call these hearings proxy hearings. For Republicans, these hearings are a proxy on the philosophy of President Obama. At least five Republicans invoked President Obama's standards for voting in favor or opposed to confirming justices to the Supreme Court. He voted against both Alito and Roberts because he believed that they would not stand up for the little guy in cases where the law was unclear. He even attempted a failed filibuster on Alito.

Just as many Republicans invoked President Obama's "empathy"standard in choosing a justice. Republicans often ridiculed and demonized this standard. Their most common attack was that such a standard perverts the purpose behind being a judge. A judge is, after all, supposed to be an impartial arbitor of the law. Decisions aren't supposed to be delivered by empathy but by the law.

Meanwhile, the Democrats turned the hearing into a proxy attack on Chief Justic Roberts. The most often repeated allusion was to the allusion first used by Roberts himself that judges should be like umpires. They shouldn't make the rules but apply them fairly. This allusion was also used by Democrats as a point of derision of Roberts himself. They brought up such cases as Ledbetter, Heller, and a partial birth abortion case as examples of cases in which Roberts wasn't, in their view, a fair arbitor. In fact, Jeffrey Toobin's scathing column on Roberts was even evoked. (though it wasn't pointed out that Toobin is himself a die hard liberal) According to Toobin, Roberts has voted in favor of the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff in "every major case". (though what major means wasn't identified by eithe Toobin or the Senator)

The Democrats realize that the term "judicial activism" has been most associated with liberal jurisprudence. Democrats went to reset the debate and try and muddy the waters on the term judicial activism. As Senator Feinstein pointed out, judicial activism is often any decision that someone disagrees with.

Democrats mercilessly attacked Roberts prompting Oklahoma Senator Tom Coburn to ask "is this Judge Sotomayor's hearing or Judge Roberts'?".

Ultimately both sides should acknowledge a reality. Even in baseball, umpires don't have one strike zone. In law, especially as it applies to the Constitution, there are so many competing issues all at once that folks of equal humility can judge the same case in a different way WITHOUT NECESSARILY making law rather than interpreting. Just look at the issue of warrantless wiretapping. Someone like me would say that the President has Commander in Chief powers and warrantless wiretaps are a normal part of war making. Meanwhile, the other side would say that warrantless wiretapping would violate the 4th amendment. Is either side making up law? I don't think so that either side is making law. Rather we are both interpreting the law in a different manner.

The Constitution is full of competing powers and areas where different parts of the Constitution compete with each other. There are definitely times when the Supreme Court simply makes law as they did in Roe V Wade. Much more time though, justices choose to find one part of the Constitution as more important than another. That's a lot more about judicial philosophy than it is necessarily judicial activism. Maybe it's time to stop demonizing judicial philosophy we disagree with as judicial activism and simply defend why the part of the Constitution we favor is the one that should rise to the top.

That said, the Republicans have in fact done what I suggested which is to tie Sotomayor to President Obama and turn his judicial philosophy into a radical one. The Democrats have tried to turn the issue of "judicial activism" on its head and turn it against conservatives.