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…
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