The Sonia Sotomayor Show before the Senate Judiciary Committee has ended, yet it lingers in the mind — like a fading hangover. Yet it is still capable of setting off a sudden jab of pain somewhere in the cerebral cortex. Especially when recalling how Her Honor could dive into the murkiest legalese to avoid answering the simplest question.
Judge Sotomayor seemed to recognize that her best defense lay in obscurity, and that, to win confirmation, she must avoid answering plain questions in plain English. At that she definitely succeeded. But the questions remain, as questions will when they are never directly addressed but only skirted.
Consider the different statuses she assigned two rights under the U.S. Constitution:
First, she declined to recognize the right to bear arms as fundamental, though it is specifically asserted in the Second Amendment. Does that mean the individual states are not bound to respect it? When that question was put to her, she lay down a heavy cover of fog to cover her retreat. Any conclusion she reached is still safely hidden.
Anyone who can sense Her Honor's ideological bent can hazard a good guess about where she'll wind up on gun rights: somewhere in the muddle over on the center-left, much like the justice she's succeeding, the memorable David What's-His-Name.
Next, Her Honor seemed to recognize a right to privacy, on which the legalization of abortion has been grounded, as fundamental to the U.S. Constitution and therefore binding on the states. Although it is nowhere mentioned in that document.
The nominee didn't seem interested in making clear distinctions so much as blurring them, so she could get through this confirmation process and go on to make American law just as uncertain as her answers to the committee. Her words were highly professional, like a doctor's when he doesn't want to be pinned down, and about as useful.
Watching this show, you could hear everything Her Honor said and at the same time hear nothing. The experience was like going to a posh party and later remembering the music, the beautiful table settings, the brilliant lights, the elegant touches and vivid colors — the committee room was perfectly arranged for Judge Sotomayor's canonization — but not being able to recall anything that was said. Mainly because it wasn't worth recalling. Some dinner parties are like that, and so are some confirmation hearings.
Her fans applauded the judge's footwork when it came to answering questions, or rather not answering them. The rest us were supposed to concentrate on her life story, not her law, and nod appreciatively.
Probably most troublesome of all was Judge Sotomayor's decision denying equal protection of the law and due process — rights specifically guaranteed under the Fourteenth Amendment — to the firemen in New Haven, Conn., who scored high on tests for promotion but were denied it anyway. Because too many of them were white, they had to take their case all the way to the Supreme Court of the United States before they were accorded simple justice.
It might not be fair to call Her Honor's ruling in their case a decision; it was more of a rubber stamp, if that. It was more like an absence of mind. She and another member of her appellate panel simply went along with the lower courts that denied the firefighters justice. She sought to explain why by referring to all the
mixed precedents on this question and mixing them further. The head spun.
When one of the more articulate firemen testified before the committee, it only added to the empty theatricality of the proceedings. Shouldn't such a hearing be about the nominee's understanding and interpretation of the law, her judicial temperament and ability, and whether she might someday make a great justice of the U.S. Supreme Court? Why, at a confirmation hearing, roll out an appellant who feels much abused by one of the nominee's decisions and have him vent, however justified his feelings? There is a place for displaying such emotions, but this wasn't it.
Happily, the spectacle didn't last long, but it came uncomfortably close to appealing to the same quality the president gave for nominating Judge Sotomayor to the nation's highest court: not any superior legal acumen but her sense of empathy. Which only added to the uneasiness the whole show left behind.
It is an opaque era for both American law and the American language. If there was a flash of clarity in these confirmation hearings, it usually came from the questioners, not the nominee. Her Honor was as voluble as she was hazy. Which made these long, long hearings seem even longer.
