Justice Confirmation Hearings

I had a chance to actu­al­ly watch a lot of Tues­day’s hear­ings for con­fir­ma­tion of Sotomay­or. The hear­ings should prob­a­bly be called pos­tur­ing hear­ings. It does seem that much of what is said by the sen­a­tors has as much or more to do with shap­ing their own image as it does with try­ing to learn about the nominee.

The Repub­li­cans, under­stand­ing that Sotomay­or’s con­fir­ma­tion is a for­gone con­clu­sion, have their only hope of pre­vent­ing her con­fir­ma­tion by catch­ing her in an error. They return to the same sub­jects over and over wait­ing for Sotomay­or to make a mis­take. Sotomay­or has han­dled all the ques­tions with aplomb.

Sotomay­or was cor­rect to walk away from her “wise Lati­na woman” com­ment, but she walked too far away. It is not true that a wise Lati­na woman will make a bet­ter deci­sion than a white male. It is true that a wise Lati­na woman might make a dif­fer­ent deci­sion that is just as good as the white males. And it some­how nev­er gets men­tioned that for 180 years all of the Supreme Court Jus­tices were white males and in the next forty years all but four Jus­tices have been white males.

To watch the hear­ings is to enter a fan­ta­sy world where white males are the stan­dard for objec­tiv­i­ty. Where white males are nev­er influ­enced by their life expe­ri­ence as a white male. But, of course, a Lati­na woman is going to always be influ­enced by her life expe­ri­ence as a Lati­na woman (even though she has a lengthy record of not favor­ing minorites).

The truth is that any jus­tice is going to be influ­enced by his or her life expe­ri­ence. That’s the way it is, the way it has always been, and the way it will always be.

It is also the way it should be.

It is also that case that every judge should be able to empathize with the peo­ple who will be affect­ed by deci­sions. This repeat­ed mantra of “fideli­ty to the law” is not mean­ing­less. Fideli­ty to the law should be the guid­ing prin­ci­ple, but the law is not com­plete. If it were, there would be no need for judges. Con­ser­v­a­tives are hap­py to have empa­thet­ic judges, just as long as the judge is a con­ser­v­a­tive. Google “Ali­to empathy”.

Final­ly, an “activist judge” is a judge with whom the speak­er does not agree.

Con­fir­ma­tion hear­ings should turn on one ques­tion only: Is the nom­i­nee qual­i­fied to sit on the Supreme Court. This is deter­mined by ask­ing the nom­i­nee about var­i­ous issues that the Court has dealt with and like­ly will deal with. If the nom­i­nee can intel­li­gent­ly dis­cuss the sub­tleties of the var­i­ous issues, then the nom­i­nee is qualified.

Sotomay­or is clear­ly qualified.