Editor's Note: On Monday, come back to CourtWatch to watch live video of the Sonia Sotomayor's confirmation hearings, plus live running commentary from CBS News legal analyst Andrew Cohen via Twitter.
(AP Photo/Pablo Martinez Monsivais)
Barring an unlikely implosion inside the Hart Office building on Capitol Hill next week, Supreme Court nominee Sonia Sotomayor is virtually assured of getting enough votes from the Senate Judiciary Committee to guarantee her place on the Court next term. Even her conservative critics are kabuki dance are how well Sotomayor holds her famous temper in check, how windy the Senator's opening statements will be, and how many Republicans will vote for her in the end. The rest will be merely for show, a tradition handed down to us over the past few decades — ever since the Senate and the White House conspired to allow television networks to cover these events live.
But that's not to say that Sotomayor's historic appearance won't or can't generate some insight. She does have some work to do, some questions to answer — not because she needs to sway the already-swayed lawmakers, but because she has an obligation to the White House, her future colleagues on the Court, and the American people to be honest and candid and explanatory. And she must be as tough and thorough in answering questions from her Democratic supporters (who may fault her for being too far to the right) as she is with her Republican opponents (who will fault her for being too far left).
Judge Sotomayor must fully explain her "wise Latina" remarks, which she repeated over and over again throughout her professional life. I think she was merely talking a little prideful smack — the comment doesn't bother me — but it's clear that her pattern of remarks on this point touches upon a legitimate concern people have about her fidelity to neutral justice. Does she have a chip on her shoulder toward the Legal Establishment still dominated by white, wealthy men? If so, let's talk about it. If not, let's move on from the distraction.
Along those lines, the nominee also must dispatch in her own words any concerns people have that she'll be too "empathetic" as a Justice. President Obama himself created this headache for Team Sotomayor when he declared after Justice David Souter's announced resignation that he, the President, was looking for a smart jurist who would bring empathy to decision-making. What is empathy in judicial-decision making? And does the nominee need to say more than what she said on the topic in 2001 — that "the aspiration to impartiality is just that, it's an aspiration because it denies the fact that we are by our experiences making different choices than others"?
Most important of these initial "perspective" questions is the nominee's proclamation in 2001 that federal appeals court judges "make policy." Judge Sotomayor is going to be hammered on this point by pious politicians too hypocritical to concede that their failures as lawmakers are the reason why judges are forced to make such "policy decisions." Judges fill the void because legislation is purposely left ambiguous and vague, and subject to differing interpretations in the name of political compromise. I'd love the nominee to swing back hard on this particular charge.
Turning to the substance of her rulings, Judge Sotomayor must first explain her role in the recently-decided "firefighter case" — . Her conservative critics are going to come at her with the argument that all nine current Justices thought she had judged the issues incorrectly. It's a bogus charge, unsupported by the language of the 5-4 ruling, but she is going to explain why her lower court ruling was so bereft of the sort of thoughtful and detailed analysis we've seen from many of her other rulings. And she's going to have to do that knowing that her opponents on the Committee have called two of the white firefighters in that case to testify against her.
The nominee also must offer the Committee, and the rest of us, a glimpse into her views of executive branch power in a time of war. She has not really had to tackle those issues on the 2nd U.S. Circuit Court of Appeals, which is based in New York and not in Washington. What does she think about the "unitary executive" theory? How about the state-secrets doctrine? How would she evaluate the post-9/11 rulings from the Supreme Court on the issue of the rights of detainees and enemy combatants and secret prisons and extraordinary rendition? Does she own up to the "practical moderate" label she has earned as a lower federal court judge? If so, how does she see that philosophy playing out when she reaches the High Court?
I know. She isn't likely to offer much detail on these points. She's much more likely to invoke the "Ginsburg Rule" (named after the current Justice, Ruth Bader Ginsburg, who refused to answer most substantive questions) and hide behind the argument that she doesn't want to "prejudge" issues that may come before her as a Justice. That would be a mistake. She should tell us what she thinks and then tell us that she reserves the right to change her mind depending upon the facts of future cases. No shrinking violet, Judge Sotomayor should show confidence and self-assuredness in expressing her views. She should create precedent for a "Sotomayor Rule" that forces future nominees to emote and emit more.
Since her critics on the Committee are already planning to raise the issue, Judge Sotomayor also must squarely address her pre-judge, pre-prosecutor days as a lawyer on the Board of Directors of the Puerto Rican Legal Defense and Education Fund. And she shouldn't be defensive about it. Justice Ginsburg played a prominent role with the American Civil Liberties Union and she was easily confirmed. In any event, membership on a board decades ago clearly is less relevant than the thousands of decisions in which she has participated since as a judge.
The judge must share with us her views on the interaction between the governed and government, between law enforcement and criminal suspects, between big business and environmentalists, and between employers and employees. And please, no umpire analogies this time out. Chief Justice John G. Roberts, Jr. conned everyone four years ago when he solemnly declared that a judge must fairly call balls and strikes — and then proceeded to call all strikes for conservative causes and all balls for liberal ones.
In a perfect world, a Supreme Court confirmation hearing would help elevate the legal and political discourse in Washington. It would be a teaching tool for students all across the country interested in learning about the interaction between the branches — all three come together here in this instance. It would allow us to better understand the principles and priorities and philosophies of the people we have anointed to be final arbiters of the law. Wouldn't that be great?
Don't hold your breath. Despite what courage and candor Judge Sotomayor will (or will not) show, we're due for another petty, partisan, bickering week on Capitol Hill. Senators of both parties will drone on with their comments, they'll ask questions they know cannot be fairly answered, and they'll score cheap political points with their constituencies at the expense of legitimate discourse. The end result is not in doubt. But the process won't be pretty. It never is.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.