I've been listening to some of the senators' speeches at the confirmation hearings for Judge Sotomayor's nomination to the Supreme Court. I'm not going to live-blog these hearings, at least if that means updating every time I have anything to say, but I do want to record some thoughts on the senators' opening statements today, and I may comment on the questioning that begins tomorrow. I'm linking to senators' statements if they are online. Not all of them are (at least yet).
Senator Patrick Leahy (D-VT) spends a good deal of time explaining the racist questions at Justice Thurgood Marshall's hearing, the anti-semitic questions at Justice Louis Brandeis' hearing, and the anti-Catholic assumptions of the unnamed first Catholic nominee (who I believe was Justice William Brennan). He then explains that we're in a different era, and we're beyond that now. Why then does he encourage the Republican senators not to cave to the pressure of special interest groups who are caricaturing Judge Sotomayor unless he thinks the conservative opposition to her is racially-based, and we're really not in a different era? I'm not sure which groups he means, but I haven't seen any of that from mainstream opponents of Sotomayor. There are those who have called her a racist, but it's not racist to call someone a racist if you think the view they hold is racist.
Senator Jeff Sessions (R-AL) seems to be setting the tone of possible criticisms well without being defaming. He's raising worries about things she's said and opinions she's joined or written. It's nice having a real judicial conservative running the Republican side of the committee again. He's a bit worried about certain decisions and statements from her, but he's not being strident or unfair about it at this point. He's doing a better job than most politicians do at setting forth a conservative judicial philosophy. It's good that he's the ranking member, thanks to Specter's defection (which he's now paying the price for, since he's the lowest-ranked member of this committee besides Senator Franken, who has only been a senator for about a week). I do think he's going too far, though, with some of her statements.
Senator Sessions thinks her record is clear that she defends the view that it's ok for judges to be biased, and I don't think her statements really amount to that, particularly with her view that experiences can and should inform how judges interpret the world and apply the law. How I see the meaning of the law is surely affected by my experiences in life, and there might well be ways that someone with experiences being discriminated against according to ethnicity will have a different view from me about what counts as wrongful discrimination. What's wrong with Sotomayor's view is that she assumes the person who has been discriminated against more often is going to have the right view, because she says a Latina judge will be a better judge than a white man. That's not necessarily true, but it's not the same thing as saying that a Latina judge should favor Latina people in particular cases. She's biased about what sort of people she expects to be better judges, but that's not a bias in how she will view people coming before her court, and Sessions is being a bit unfair in treating the two as the same thing.
Senator Herb Kohl (D-WI) makes the case for considering her whole record and not just going by her decisions. He's making a lot of room for the Republicans to find places to criticize, but I think he's also trying to frame some ways she'll be able to respond to those criticisms. He and his fellow Wisconsinite Senator Feingold have always struck me as less partisan than the rest of the Democrats on this committee. That's true even though Senator Feingold is probably the most liberal member of the committee in his policy views (athough maybe that's changed with some new members).
Senator Orrin Hatch (R-UT) reads off a number of then-Senator Obama's criteria when he filibustered the nomination of Judge Janice Roberts Brown to the D.C. Circuit. He arguesconvincingly that those criteria should have led to approval votes for Roberts and Alito. One signal that he's considering voting against Judge Sotomayor's confirmation, when he has never done so in the past, is that he seems to be getting fed up with the disjunct between what Democratic senators have said about Republican nominees and the official standards they present. Another sign is that he went out of his way to point out that judicial philosophy can be a qualification, and he said that presidents only get some deference for their qualified nominees. He's opening up the door for a "no" vote, and I get the sense that he's at least open to voting against her nomination, despite what many have assumed.
Senator Diane Feinstein (D-CA) accused Chief Justice Roberts and Justice Alito of agreeing with Senator Specter that Roe and Casey are settled precedent and then overturning the main holding of Casey that a health exception is required in any abortion ban. First of all, they never agreed that there even is such a thing as a super-precedent, never mind that any particular cases are in such a category (e.g. see here). Second, they agreed that those cases are precedent but were very clear that precedent only gives some consideration toward how to decide further cases, and settled precedent can indeed be overturned. Third, Casey had a number of equally-central components. The insistence on a health exception was one of them. Several other points were at issue and were equally important to the case. Third, and most important to my mind, they did not overturn the health exception requirement of Casey. The partial-birth abortion ban that they upheld did have a health exception. It just had a weaker one than she wanted, and they held that the requirement of health exceptions in Casey does not require such a broad allowance of health exceptions as some of the other Supreme Court decisions took it to require. It did involve a movement away from precedent, but Justice Kennedy was a co-author of Casey, and he contended that the view he was distancing himself from was consistent with what he thought he was agreeing to when he agreed to write that opinion with Justices O'Connor and Souter. There's certainly room for disagreement about the extent to which Kennedy's later opinion disagrees with his earlier opinion, but you can't straightfowardly say that it overturns the central holding in Casey. It's a much more limited decision than that by any reasonable standard.
She then moves on to assume overturning precedent is inconsistent with the metaphor of judges as baseball umpires calling balls and strikes, failing to note that overturning wrongly-decided precedent might still be calling the ball or strike as it should originally have been decided. So listing off cases where a justice on the Supreme Court has voted to overturn precedent or seriously undermine it makes no ground whatsoever in advancing the claim that the justice is doing something other than calling balls and strikes.
I'm not sure I have anything interesting to say about Senator Chuck Grassley's (R-IA) remarks, but I thought I'd put up the link to them at least. I should note that he's going to take over as ranking member (or chair if the Republicans happen to reclaim the Senate) in 2011. He hasn't been as strong a defender of judicial conservatism as Senators Hatch and Sessions, but he'll surely be an improvement over Senator Specter as far as judicial conservatism goes.
Senator Russ Feingold (D-WI) is challenging the charge of racism against Judge Sotomayor. He's defending her statements that experiences should inform judging. He doesn't point out that she didn't just say that experiences of different sorts should affect judging. She went on to say that certain experiences are always going to make better judges, and she claimed being a Latina will make her a better judge, not just that it will give her some information that other judges wouldn't have (which would be balanced by the information a white man might have that a Latina might not have because of her different experiences). Some will still defend the claim she actually made, but we first ought to be honest about what claim she made.
Critics of her are wrong to say that experiences can be ignored. Experiences can easily affect how you interpret the facts. There is no impartiality in the sense of having a "view from nowhere". The only impartiality possible is a "view from everywhere", which necessarily requires seeing things from different perspectives, not seeing things from no perspective. But it doesn't follow from the reality of experiences shaping interpretation that certain perspectives are always better.
Senator Feingold also seems to want to set up the two sides of the debate as those who recognize her nuanced position and those who think her position is racist. He doesn't allow for the possibility of anyone thinking she's wrong without thinking her view is racist. It's hard to see that as a fair representation of the opposition, even if there have been some to call her a racist because of her statements on the subject.
Senator Jon Kyl is patently unfair in his move from her gender and Latina heritage informing her judging to the claim that she decides not based on the law but on who she believes should win. There's a huge difference between thinking your experiences inform how you think about the world and thus can judge more accurately and thinking your experiences are going to cause you to decide in favor of those who are like you without regard for the law. Her record certainly shows the lie to that claim.
This is becoming a recurring theme. Both sides misrepresent her claims on this issue. The Democrats tend to be taking her to say something much less problematic than what she said, and the Republicans tend to be taking her to say something much worse than what she said.
Senator Chuck Schumer (D-NY) trots out the irrelevant fact that a Republican president nominated her to the district court as if it shows anything about her, when it's common practice for presidents to defer to home-state senators in selecting district court judges, and her selection came from a Democratic senator.
Schumer thinks her agreement with Republican colleagues 95% of the time is evidence that she's less biased than him, because she doesn't have a record number of dissents. Someone earler mentioned Alito's 99% agreement with Democratic colleagues. I'm having trouble seeing how these numbers work out the way he wants them to. He then goes on to point out that she ruled for the government 83% of the time in immigration cases and 92% of the time in criminal cases, while denying racial discrimination claims 83% of the time. [ScotusBlog has collected links to a bunch of sources that would substantiate some of these numbers.
See Senator Whitehouse's argument below against Justice Alito on grounds that would easily apply to Sotomayor's record. He's right that her record on this is largely unproblematic, and that shows some of the problems with the claim that she can't be unbiased in such cases because of her statements about race. But this point only goes so far, given that many of these cases simply enforced Supreme Court or Second Circuit precedent. On the Supreme Court, she'll be freed from that role. So her statements are relevant to how she might rule on such questions in ways that depart from her record as a circuit judge.
Senator Lindsey Graham (R-SC) makes the point that the suggestion of racism in opposing her is at odds with the facts. Republican on the committe would be happy to vote for Miguel Estrada, and no Republican president would have selected her. He's listed a bunch of views that trouble him ideologically. He doesn't think it disqualifies someone to hold such views, though. It's her speeches where she's not wearing the robe that trouble him more. President Obama won, and that ought to matter. He wouldn't vote for her with Obama's standard. He has no way of knowing what's in her heart, so that's an absurd, dangerous standard. It would ruin the judiciary to apply that. Anyone confused about what Scalia and Ginsburg would do shouldn't be voting.
He says she's of good character, has lived a good life, is passionate, and speaks her mind. He doesn't want to deter people from speaking their mind, but he is disturbed by what she said. He wants lawyers and judges willing to fight for what they believe. His inclination is that elections matter, but he won't get upset at his colleagues if they have a different approach. He is disturbed by the content of what she's said, but he wants to know if she'll be fair.
Senator Graham is the only senator in the whole bunch to understand the main issue of the race statements. Having experiences others have don't make you a better judge. They inform you in ways that others aren't informed, and other elements of other people's experiences might inform them in ways that others aren't informed, but they don't make you better. Every other senator who discussed those statements by her missed that central point. He is by far my favorite senator on this committee. His closing statement in the Roberts hearings was probably the best moment of the judicial confirmation hearings of either Bush nominee.
Senator Leahy steps in once Graham ends to say that the Republicans never gave Estrada a hearing, but the Democrats did, and he backed out because of a lucrative job offer. Graham responds that the Republicans tried seven times and were blocked. Leahy is being pretty dishonest here. The Democrats clearly blocked that nomination by dragging out a very long time, and he eventually gave up and withdrew. It's hard to take Leahy's statement as honest. See Jan Crawford Greenburg's response. Estrada already had a high-paying job and was willing to give it up for the federal bench. Her summary:
Estrada was blocked by Democrats for one reason -- the same reason they blocked Bush's other minority and women nominees: They knew he would be on the short list for the Supreme Court if confirmed. And they knew it's a lot easier to block a nominee at the appeals court level, when no one is paying as much attention as the do to the Supreme Court. (Republicans are seeing that now with Sotomayor.) It was a deliberate, thought-through strategy.
Senator John Cornyn
(R-TX) focuses on actual constitutional rights that she's been accused of reducing -- particularly the 2nd, 5th, and 14th amendments (gun rights, property rights, and equal protection rights, respectively). He's also expressing a worry about her potential for inventing rights not in the Constitution, but he doesn't get into specifics here. Instead, he moves to her published work defending the inaptly-name view call legal realism that takes the law to be purely a matter of how an interpreter takes it to be rather than there being any reality to what the law says objectively. This is a question I really want the senators to push her on, so I'm glad someone has brought it up. It's unfortunate that it took so far down the Republican list for someone to mention it.
Here is Senator Ben Cardin's (D-MD) speech.
Senator Tom Coburn (R-OK) takes her to task for wanting an unpredictable system of law. I don't remember this statement, but I can see why it would be problematic.
Senator Sheldon Whitehouse (D-RI) quotes Jeffrey Toobin's discredited claim that Chief Justice Roberts always votes with the employer against the employee, the government against the citizen, and so on. Frank Ricci was the employee who was being discriminated against by the government. With such a prominent case in the news, especially one relevant to this hearing, how can Toobin and Whitehouse put forward such a pretense? Never mind the several environmental cases where he's gone against the government in favor of business. Then there's <i>D.C. v. Heller</i>, the gun-rights case establishing clearly that individuals have a right to self-defense and that the government doesn't have a right to infringe on that very easily. Senator Schumer's comments (see above) show the biggest problem with this kind of argument. Sotomayor herself has a similar enough record anyway, ruling most often for the government and the employer on cases of the sort Senator Whitehouse is talking about. The fact is that those who make such claims have certain individual rights that they want enforced and increased and others that they choose to ignore that they want minimized or removed.
Here are the remarks by Senator Amy Klobuchar (D-MN), Senator Ted Kaufman (D-DE), and Senator Arlen Specter (D-PA).
Senator Al Franken (D-MN) seems to be more interested in talking about himself than about her or this process. It's true that this is his first public appearance as a U.S. Senator, but this isn't the time to talk about himself and how he's going to conduct himself in his new job.
Franken's evidence that "judicial activist" in the mouth of conservatives means "someone who will vote differently from me": Justice Thomas voted to overturn more federal laws than Justices Stevens and Breyer combined. What's the connection between these two things? If a law is unconstitutional, it's judicial activism to uphold it. If it's not, it's judicial activism to overturn it on constitutional grounds. Whether someone overturns or upholds a law has nothing to do with whether the person is judicially activist. It seems Franken's view of judicial activism is that it's whenever judges go against Congress, whereas Senator Feinstein (see above) thinks judicial activism is whenever judges overturn previous judicial precedent. Doesn't it matter if the vote to overturn a law of Congress is based on something more fundamental than Congress (i.e. the Constitution) or if the vote to overturn precedent is based on something more important than precedent (i.e. the Constitution or the law that the precedent was interpreting)?
I did listen to Judge Sotomayor's opening statement, but I don't think I have anything interesting to say about it.