Call it The Sonia Sotomayor Show, or maybe An Invitation to a Confirmation. For the ending of this little drama is as sure as anything in politics. The fun lies in watching how the actors get there.
The pageant opened before the Senate Judiciary Committee with all rites observed in full. The nominee for the U.S. Supreme Court conducted herself with dignity and spoke of her devotion to impartial justice. And the politicians were, in a word, political. Especially when they were self-absorbed, self-promoting and self-serving.
No surprises there. Pols will be pols. One after the other, they did what politicians do on so august an occasion: They posture and prance and pounce and pontificate. They're not about to forgo any face time with a national television audience. Regardless of party or ideology, one common, underlying theme underlay many of their remarks: "Look at me! Look at me!" On this opening day of the proceedings, with the hearing room packed and television cameras everywhere, the generality of the senators seemed under the misapprehension that all this fuss was about them.
Not a confirmation hearing of any note passes without bringing to mind the story about the candidate for some minor post who was attending a rally for his party's presidential candidate. Big doings. At one point the head of the ticket was dutifully going down the names of the party's nominees for the lesser offices at the bottom of the ticket. That's when the local politician reached over to shush his wife. "Quiet!" he commanded. "The next president of the United States is about to talk about ME !"
Some of the senators at this hearing were more restrained than others, thank you, while others were even more egocentric than usual on this auspicious occasion. Al Franken, for example, who has finally won his fight to represent Minnesota in the United States Senate, promises to be as sad a senator as he was a comedian.
The comedy on Day One ended when the nominee finally got to speak for herself, which she did rather well. For one encouraging thing, she didn't use all the time allotted her for an introductory statement — a good sign. In her statement, Judge Sotomayor emphasized "fidelity to the law" as her guiding principle. Spoken like a wise Latina woman — or any other judicial nominee who aims to be confirmed. It's not just politicians who can be politic.
The distinguished nominee began Day Two prudently — by putting as much distance as she could between herself and her earlier hope that "a wise Latina woman with the richness of her experiences would more often than not" reach a better conclusion than a mere white male.
Now, it seems, she was just "using a rhetorical flourish that fell flat." As she explained it, her comment "was bad because it left an impression that I believe that life experiences commanded a result in a case …"
The reason her remark left that unfortunate impression, of course, is because that's what she said. But after her repeated disavowals, there should be little need to beat this dead cayuse any further. Her Honor had some 'splainin' to do—to quote that eminent jurist of the "I Love Lucy" circuit, Rickey Ricardo — and now she's 'splained. Or at least backtracked. Enough said.
But the judge ran aground early on Day Two when she stuck with what surely was the worst and maybe the most abrupt decision of her long career: agreeing to deny promotion to those now famous New Haven, Conn., firefighters who had qualified for it by passing the requisite tests. It seems not enough black Americans had scored high enough on the tests to qualify for better jobs, or maybe too many white Americans had. Thereupon the authorities in New Haven decided to ignore the tests they had once required.
The usual result ensued: Lawsuits were threatened and/or pursued. For the Civil Rights Act of 1964 forbids discrimination against an individual on account of race but another statute, passed in 1991, bans tests that affect whole groups of applicants differently, or have a "disparate impact." Judge Sotomayor summarily ruled against the white firefighters even though one of her colleagues on the three-judge panel warned her that the issue was much more complicated than her cavalier treatment of it indicated. He wanted to refer the issue to the whole appellate court. She ignored him, just as New Haven had ignored the Civil Rights Act of 1964, and was reversed by the Supreme Court.
Judge Sotomayor explained that she didn't ignore the law, but rather the Supreme Court changed it on her. That's her story and she's sticking with it — even though the conflict between the two legal doctrines has been debated in detail for years. Her cursory decision in this case is not a good omen for the kind of Supreme Court justice she would make: wrong but stubborn about it. And dismissive of full discussion when her preconceptions, or just plain prejudices, are challenged. What we have here is an example not of a judicial temperament but a litigator's.
Judge Sotomayor will surely be the next associate justice of the U.S. Supreme Court, but her stance on this question indicates she won't be a great one.
