For more than three hours on Monday, at the outset of the Sonia Sotomayor confirmation hearing, the Senate Judiciary Committee’s 19 members talked. And they talked. There were no surprises, and many a reporter found it to be a boring prelude to the questioning of the nominee on Tuesday and Wednesday.
But a few of us Supreme Court geeks found it all pretty interesting, if undramatic. I quote below, and add brief comments about, some of the more notable remarks by 10 of the 19 committee members — first five Democrats, then five Republicans.
Sen. Patrick Leahy, D-Vt.: “Those who break barriers often face the added burden of overcoming prejudice, and it’s been true in the Supreme Court. Thurgood Marshall graduated first in his law school class. He was the lead counsel for the NAACP Legal Defense Fund…. He won a remarkable 29 out of 32 cases before the Supreme Court. But despite all of these qualifications and achievements, when he was before the Senate for his confirmation, he was asked questions designed to embarrass him, questions such as ‘Are you prejudiced against the white people of the South?’… The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism…. Let no one demean this extraordinary woman.”
Comment: These allusions to the “prejudice” that Marshall and Brandeis encountered were a stretch. There is no public evidence that Sotomayor has ever been subjected to serious prejudice or discrimination. Far from demeaning her, Republican senators have celebrated her inspiring personal story and the idea of a Hispanic woman sitting on the Supreme Court. And it is Sotomayor, not her critics, who has engaged in stereotyping by suggesting repeatedly that a “wise Latina woman” would make better decisions than a white male.
Sen. Dianne Feinstein, D-Calif.: “Several past nominees have been asked about the Casey decision, where the court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman’s health. Some nominees responded by assuring that Roe and Casey were precedents of the court, entitled to great respect…. But once on the court, the same nominees voted to overturn the key holding in Casey, that laws restricting a woman’s medical care must contain an exception to protect her health. Their decision did not comport with the answers they gave here…. As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases.”
Comment: Feinstein initiated what became a major Democratic theme: attacking Chief Justice John Roberts, Justice Samuel Alito, and the court’s other conservatives. The theory seems to be that the best defense of Sotomayor includes a good offense against the conservatives. But in fairness to Roberts and Alito, both took care to avoid giving in to demands by Democratic senators that they vow never to overturn Planned Parenthood v. Casey. And liberal justices are no less prone than conservatives to overturning precedents they don’t like.
Sen. Russell Feingold, D-Wisc.: “I suggest to everyone watching today that they be a little wary of a phrase they’re hearing at this hearing, ‘judicial activism.’ That term really seems to have lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as activist in their disregard for precedent and their willingness to ignore or override the intent of Congress. At this point, perhaps we should all accept that the best definition of a judicial activist is a judge who decides a case in a way you don’t like.”
Comment: This was a fair retort to Republicans who have tried to pin the tired old “judicial activism” label on Judge Sotomayor. Whatever objections one may have to her decisions, she has so far been less prone to strike down democratic enactments based on debatable constitutional interpretations (one definition of activism) than have the Supreme Court’s conservatives (and its liberals).
Sen. Charles Schumer, D-N.Y.: “Judge Sotomayor’s record bespeaks judicial modesty — something that our friends on the right have been clamoring for — in a way that no recent nominee’s has…. [She] delves thoroughly into the facts of each case. She trusts that an understanding of the facts will lead, ultimately, to justice…. Just four short years ago, then-Judge Roberts… told us that his jurisprudence would be characterized by ‘modesty and humility.’… But many can debate whether during his four years on the Supreme Court he actually called pitches as they come or whether he has tried to change the rules.”
Comment: Whether Roberts has in fact tried too aggressively to change the rules is debatable. But his June 2007 plurality opinion sharply curbing school districts’ freedom to pursue racial integration, for example, hardly seemed modest. Or so I argued in a July 7, 2007 column.
Sen. Richard Durbin, D-Ill.: “The recent decision of Ledbetter v. Goodyear Tire and Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simple, fundamental: Should women be paid the same as men for the same work? Lilly Ledbetter was a manager at a Goodyear tire plant in Alabama. Worked there for 19 years; didn’t learn until she was about to retire that her male colleagues in the same job were paid more. She brought a discrimination lawsuit. The jury awarded her a verdict. The Supreme Court, in a 5-4 decision, reversed it, threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late.”
Comment: This continued a long line of distortions of the 2007 Ledbetter decision. In fact, the question was not whether women should be paid the same as men for the same work. The Equal Pay Act clearly requires equal pay for equal work. But Ledbetter pressed her case under a different law in the hope of collecting punitive damages. The real issue in the Supreme Court was whether to create an exception for Ledbetter to the congressionally established time limit for suing. And in fact, Ledbetter learned more than five years before she retired that she was paid less than male colleagues — most of whom were not in exactly the same job.
Sen. Jeff Sessions, R-Ala.: “I think it’s noteworthy that, when asked about Judge Sotomayor’s now famous statement that a ‘wise Latina’ would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice [Ruth Bader] Ginsburg declined to defend the substance of those remarks. They each assumed that the nominee misspoke…. But the nominee did not misspeak. She is on record as making this statement at least five times over the course of a decade…. We’ve seen the video of a Duke University panel where Judge Sotomayor says, ‘It’s the Court of Appeals where policy is made.'”
Comment: Sessions was on the mark in stressing that it is the Sotomayor camp that has distorted (rather than defending) her “wise Latina” remark, which she repeated too many times for it to be a verbal slip and which was quite consistent with the general tenor of the speeches in which she used those words. On the other hand, Sessions was on weak ground in echoing unpersuasive efforts by conservative groups to portray her comment about courts making policy as evidence of an activist agenda.
Sen. Orrin Hatch, R-Utah: “Now, if a compelling life story, academic and professional excellence, and a top ABA rating make a convincing confirmation case, Miguel Estrada would be a U.S. circuit judge today. He is a brilliant, universally respected lawyer; one of the top Supreme Court practitioners in America. But he was fiercely opposed by groups and repeatedly filibustered by Democrat senators, and ones who today say these same factors should — should count in Judge Sotomayor’s favor.”
Comment: Hatch led the way for Republicans in refuting Democratic efforts to tar Sotomayor’s critics as anti-Hispanic. Estrada, who immigrated as a teenager from Honduras, might well have been the first Hispanic justice but for a successful Democratic campaign to block his confirmation to an appeals court seat that was seen as a stepping stone to the Supreme Court.
Sen. Jon Kyl, R-Ariz.: “From what she has said, she appears to believe that [her] role is not constrained to objectively decide who wins based on the weight of the law, but rather, who, in her personal opinion, should win…. Judge Richard Paez of the 9th Circuit… [speaking] in the same venue where, less than 24 hours earlier, Judge Sotomayor made her now-famous remarks about a ‘wise Latina woman’ making better decisions than other judges… [said]: ‘We take an oath of office…. It says, in part, that you promise or swear to do justice to both the poor and the rich…. And so, although I’m a Latino judge… I try to judge them fairly. I try to remain faithful to my oath.'”
Comment: Kyl, like other Republicans, oversimplified Sotomayor’s “wise Latina” and other speeches by failing to note that they are somewhat ambiguous and internally inconsistent, with deprecating references to the ideal of impartiality alternating with vows to pursue that ideal. But Kyl’s contrast of Sotomayor’s hemming and hawing about impartiality with Paez’s entirely unambiguous endorsement of it was telling.
Sen. John Cornyn, R-Texas: “The Supreme Court has invented new rights not clearly rooted in any constitutional text. For example, the Supreme Court has micromanaged the death penalty, recognized in 35 states and by the federal government itself, and created new rights spun from whole cloth. It’s announced constitutional rules governing everything from punitive damages to sexual activity…. The Supreme Court’s even taken on the job of defining the rules of the game of golf.”
Comment: Thus did Republicans meet Democratic complaints about conservative judicial activism with their own perennial complaints about the liberal variety.
Sen. Lindsey Graham, R-S.C.: “Now, unless you have a complete meltdown, you’re going to get confirmed… This ‘wise Latino’ (sic) comment has been talked about a lot. But I can just tell you one thing: If I had said anything remotely like that, my career would have been over…. Does that mean that I think that you’re racist? You’ve been called some pretty bad things. No. It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don’t think it makes you better than anyone else.”
Comment: Graham got a laugh with his “meltdown” line. He also put his finger on what is most disturbing about the “wise Latina” remark: While Sotomayor champions like to say that she was merely recognizing that people of different backgrounds sometimes think differently, the word she chose was not “different.” The word was “better.” At the same time, Graham recognizes that Judge Sotomayor’s record on the bench is largely free of the ideological passions displayed in her speeches. So far.