It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. She is an excellently qualified nominee and will make a careful, thorough justice.1 She demonstrated her clarity and technical skill in correcting several senators’ misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them. Her personal history is remarkable—from a poor South Bronx family she became a Princeton summa graduate and an editor of TheYale Law Journal. Her long judicial and extrajudicial record suggests that she is markedly less driven by ideology and more respectful of technical legal argument than Chief Justice John Roberts and Justice Samuel Alito seemed before their nominations and have shown themselves to be once on the Court.
Her hearings could therefore have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.
The constitutional provisions that provoke the most controversial Supreme Court decisions are drafted in abstract moral language: the Constitution refers to “due process of law,” “equal protection of the laws,” “cruel and unusual” punishment, the “right” of free speech, the “free” exercise of religion, and the “right” to “bear arms,” for example. Some lawyers, including Justices Antonin Scalia and Clarence Thomas, insist that we can interpret these clauses and apply them to concrete contemporary cases by asking a historical question: What did those who wrote that language, and the citizens they spoke to, assume the clauses meant? But that conservative theory can itself be defended only by appealing to highly controversial political principles about the nature of democracy and about the role of intention in constitutional interpretation. The theory is unhelpful anyway because the authors of the abstract clauses almost certainly intended to say what their words naturally mean: they meant to forbid any law that denies equal status to all citizens, which is very different from forbidding any law they themselves thought denies equal status.
The clauses, read literally, therefore require interpreters to develop what they believe to be the best theory of equal citizenship, which is not necessarily the theory of the framers. The same Congress that approved the equal protection clause in 1868 itself segregated the public schools of the District of Columbia, but no one now supposes that the equal protection clause allows segregation.
The Supreme Court’s past decisions do act as precedents that limit contemporary interpretation. But these past decisions often themselves require interpretation. In 1937 Justice Benjamin Cardozo laid down a test for interpreting the due process clause: he said it protects those rights that are “of the very essence of a scheme of ordered liberty. To abolish them is…to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”2 What is now the leading precedent on abortion rights declares that constraints on abortion are unconstitutional if they impose an “undue burden” on pregnant women.3 Lawyers and judges disagree markedly about what is essential to ordered liberty, how American traditions and conscience are to be understood, and what constraints on abortion are undue. And justices may ignore past decisions, openly or covertly, as Roberts and Alito, who themselves promised fidelity to the law, have done brazenly since their confirmations.4
So a genuine constitutional philosophy must be a system of different kinds of political principle that guide a judge in interpreting the abstract constitutional clauses and the past decisions of other judges. It must include some at least rough theory about the best conception of democracy, including the best understanding of the individual rights that must be secured by law, as a matter of justice, if government by majority rule is to be fair. I emphasize that these are principles held as a matter of moral conviction; they are not prejudices of political partisanship or sympathy for or identification with any class or racial or ethnic group. The difference is crucial: a judge will try to justify his principles by some more general theory of political morality and he will respect their demands even when they cut against his partisan preferences or loyalties. The difference was made stark by the Court’s shameful decision in Bush v. Gore, when five conservative justices declared George W. Bush president on grounds that they had themselves rejected in past cases and that they conceded would have no application in future ones.5
Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.
Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.
So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.
She refused to answer, as they knew she would, on the ground that these issues might come before the Court again, and she would therefore violate judicial ethics if she took a position. As she asked Senator Tom Coburn of Oklahoma: “Would you want a judge or a nominee who…said I agree with you, this is unconstitutional—before I had a case before me…?” Opposition senators told journalists, predictably, that they were irritated with her evasions; supporting senators praised her for wise judicial restraint.
If the myth had been abandoned, the senators could have asked different and better questions that Sotomayor could not as easily have refused to answer. For example,
Judge, I know you can’t prejudge cases that may come before you if confirmed. But we both know that in many cases a judge’s philosophical convictions play an unavoidable role. So can you tell us, speaking abstractly, what individual rights you think should be protected, in your personal opinion as a matter of justice, to give all citizens equal status in our democracy? Or whether you think there is any moral objection to race-sensitive policies, short of quotas, that are well designed to reduce racial inequality and tension? Or whether and how far you think that the majority of citizens should have the right to bar sexual practices that they find immoral or distasteful?
Of course I know that many other factors affect your decision about equal protection and due process cases: the Constitution’s text, the Court’s precedents, statutes, and so forth. So I can’t and won’t draw any inferences about how you would vote in any actual case from what you say. But it would be helpful to this committee, and valuable to citizens watching, to know your thoughts.6
Such questions are, of course, out of order so long as the myth is accepted; it declares that a judge’s moral opinions are beside the point because she should be guided only by the law.
The main bone the Republican senators gnawed during the hearings was Sotomayor’s now famous remark that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” That statement does seem to challenge the myth: if a judge has only to discover the law, and if personal experiences and convictions are irrelevant, what difference could it make whether the judge is a woman and a Latina? It was therefore imperative for Sotomayor, since she had declared that her constitutional philosophy was only fidelity to the law, either to explain away or to abandon her remark. She first said that she meant only that judges should set their personal experiences aside, which appears the opposite of what she had said. Later, on several occasions, she retracted the statement altogether:
My rhetorical device failed. It failed because it left an impression that I believe something that I don’t…. It left an impression that has offended people and has left an impression that I didn’t intend.
In fact, however, if we substitute “sometimes” for “more often than not,” leaving the question open which kinds of cases she had in mind, her remark makes eminent sense. It plainly helps a judge not only in finding facts but in formulating law to be able empathetically to understand the law’s impact on people of different kinds. As Justice Ruth Bader Ginsburg told The New York Times, for example, being a woman helps a judge understand the horror of a strip search for a teenage girl.7 Being a Latina may give a judge a better understanding of the crucial moral difference between racial discrimination poisoned by prejudice and race-sensitive policies aimed at erasing that prejudice. A judge with that understanding would reach a better interpretation of the Constitution’s equal protection clause than a judge without it. No wise Latina would miss the obtuseness of South Carolina Senator Lindsey Graham’s observation, for instance, that if he had said a wise white man could make better decisions his career would have been destroyed.
Sotomayor was confirmed by the full Senate, 68–31, on August 6. Nine Republicans voted for her and the rest voted against. Her margin of victory was significantly greater than Justice Samuel Alito's margin—58 to 42, with only four Democrats supporting the nomination—when he was confirmed on January 31, 2006.↩
Palko v. Connecticut, 302 U.S. 319 (1937).↩
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).↩
See my The Supreme Court Phalanx: The Court's New Right-Wing Bloc (New York Review Books, 2008).↩
Senator Tom Coburn apparently wanted to ask a question of that kind. With his mind on gun control, he asked Sotomayor whether people have a right to defend themselves. When she began to describe what the courts had decided in the past he interrupted: "I wasn't asking about the legal question. I'm asking about your personal opinion." She then dismissed the question as "abstract."↩
See Emily Bazelon, "The Place of Women on the Court," The New York Times Magazine, July 7, 2009. Ginsburg was referring to Safford Unified School Dist. #1 v. Redding, Supreme Court, decided June 25, 2009.↩
Sotomayor was confirmed by the full Senate, 68–31, on August 6. Nine Republicans voted for her and the rest voted against. Her margin of victory was significantly greater than Justice Samuel Alito’s margin—58 to 42, with only four Democrats supporting the nomination—when he was confirmed on January 31, 2006.↩
Palko v. Connecticut, 302 U.S. 319 (1937).↩
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).↩
See my The Supreme Court Phalanx: The Court’s New Right-Wing Bloc (New York Review Books, 2008).↩
Senator Tom Coburn apparently wanted to ask a question of that kind. With his mind on gun control, he asked Sotomayor whether people have a right to defend themselves. When she began to describe what the courts had decided in the past he interrupted: “I wasn’t asking about the legal question. I’m asking about your personal opinion.” She then dismissed the question as “abstract.”↩
See Emily Bazelon, “The Place of Women on the Court,” The New York Times Magazine, July 7, 2009. Ginsburg was referring to Safford Unified School Dist. #1 v. Redding, Supreme Court, decided June 25, 2009.↩