At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"
The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].
Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be."
It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:
LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?
FRIED: Well...
LEAHY: I mean...
FRIED: Yes, I'm afraid I do.
LEAHY: They don't admit it. But do you know anybody who should disagree with it?
FRIED: Not a soul.
LEAHY: I thought you might feel that way.
Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.
But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.
Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!
(I'm sorry I don't have a transcript to link to. Here is video of the event.)
After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....
Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.
Yet none of the leading candidates for the Court appears to be an economic populist....
Why the absence of liberal economic populists from the shortlist?...
Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....
The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").
That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....
If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?
The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.
Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth.
We're not even halfway to our goal today, but we needed to stop on an important mission and then again for some coffee and WiFi. In the car, we partook of some of the Sotomayorganza, but that got old after an hour or so. I had my notebook on my lap, and I wrote... I mean authored:
"wrote... authored..."
That was at 9:25 CT, when Sotomayor was in the middle of talking about some Ginsburg opinion. SS had already voiced the word "wrote" and then she changed it to "authored," as if "wrote" was a mistake. I know there are people who think "wrote" and then make a point to say "authored" — and do all sorts of other hoity-toity substitutions — but, jeez, if the simple world has already slipped out, move on. Don't let people hear that you do that.
Not that it's disqualifying or anything. Just something that made me want to write in my notebook, back in Wisconsin a few hours ago. Now, as I said, we are in Indiana.
A cute little girl walks up to our table and stares. I say hi. She thinks a bit, then says, "Y'all got 2 computers?!" I say, yeah. She's all, "How'd you get that?" I say, we just got 'em, as her dad/older brother shoos her along.
Back to my Sotomayor notes.
strategy: boring us to death
+ avoiding creating highlights for the nightly news
no one has ever said "precedent" so many times in a confirmation hearing
And I remember saying something like: "She's talking about precedent so much because it's her way to nullify anything that she ever did as a Court of Appeals judge. She did it because of precedent, so she's not really responsible for anything." But there's room to maneuver within the limitations of precedent, and in the things that she did — while citing precedent — we can perceive her leanings, and we quite properly want to know what her leanings are.
Other techniques she's using: speaking very slowly, laying out the basics of case law, and repeating the most innocuous platitudes about judging.
We switched over to the satellite radio. 60s on 6. "Mrs. Robinson," then The Happenings doing one of those quasi-pedophilia-type songs that no one would do anymore ("Go away little girl..."). Click to 80s on 8. "Rock the Casbah." The 80s sometimes beat the 60s. Not often, but sometimes.
Paul Zrimsek said — paren — "Placeholder for a thousand words of bafflegab involving depth of field and photo-editing software, somehow proving that Obama threw a perfect strike" — close paren. Ha ha. I would front page that.
Later, we get back to the Sotomayorganza, and it's Al Franken at last. He's talking about himself again, saying something that we start parodying: Here I am, Al Franken, a Senator, talking to you, Sonia Sotomayor; we are here, in the Senate, and I am talking and you are talking. Check the transcript and you'll see. He's in this inane "I am a Senator" mode, and he's breaking all records for using the word "I." He bumbles through pointless questions detailing cases and revealing he knows next to nothing about actual Supreme Court cases. He ends his segment by asking Sotomayor: What's the title of the "Perry Mason" episode where Perry Mason lost a case? This gives Sonia a chance to giggle a bit in a human manner — after being ploddingly robotic all day. She doesn't know the title, and it turns out Al doesn't either, which baffles old man Leahy.
Time to close up the MacBooks and hit the road again.
No, no. I'm afraid I can't. I've got places to go. But I will listen to it, live, on the satellite radio as we cover a lot of miles today. And I'm going to take notes in a notebook, because that's how much I care.
And when I stop for a cheeseburger in a McDonalds, I'll get on the WiFi and share my observations, which may or may not be skewed by my personal experience of watching the interstate fly by instead of watching the faces of the Senators confronting the wise Latina.
Somebody, anybody, please, take the initiative to live-blog in the comments — to live-comment the hearings. Or not. Say anything. On the topic of Sotomayor. I'll put up a general open thread in a few minutes. Then, I'm throwing my things in a suitcase, so we can be in the car by 9 Central Time, when Senator Leahy restarts the proceedings.
8:16 CT: Just setting up a post. The hearings begin at 9 CT. Stop back.
9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.
9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where policy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.
9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.
10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.
10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.
11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.
11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.
11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.
11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?
11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.
1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.
1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
Sotomayor sticks to her strategy of declaring fidelity to the law. None of this "heart" business for her.
2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?
3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.
3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an originalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.
3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.
3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.
3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.
6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?
8:22 Central Time: I'm setting up the post. The hearings start at the top of the hour. You can watch on-line at C-SPAN. I'll be watching, with a DVR assist to get quotes right, and I'll also be doing some radio commentary, at the breaks, on Minnesota Public Radio.
8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!
9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."
9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.
9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.
9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]
9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.
10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.
10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.
10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.
12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.
1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.
1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!
1:33: "Judge Soh-toh-my-AIR."
1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.
1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.
1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.
2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.
