Teach to AmericaCan judicial confirmation hearings really be transformed into "teachable moments"?
Posted Thursday, June 4, 2009, at 5:18 PM ETRead more from Slate's coverage of Sonia Sotomayor’s nomination.
It is a truth universally acknowledged that Judge Sonia Sotomayor's upcoming confirmation hearing might just become a "teachable moment" for America. We know this because Sen. Jeff Sessions said it on Tuesday, as did John Stanton and Mona Charen, as well as dozens of others in recent days. If the judicial confirmation process weren't such a filthy, dismal, politicized process, we're told, we could use the hot glare of the C-SPAN cameras to teach, educate, illuminate, and edify the good citizens of the United States about something important.
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StumbleUponBut what exactly is it that we might teach? Even if we could change the confirmation process, is there really something to be learned from it? Walter Lippman once said that in political discourse, "the facts exceed our curiosity," and one suspects that this is nowhere truer than in a court confirmation battle. Is it possible we may not really want to discuss judicial philosophies? Are we content to engage in what Yale Law School's Stephen L. Carter has characterized as glorified gossip—exuberant whispering over the hedges that this nominee did that with her taxes and that nominee believes this about gay marriage? Or is there something profound to be learned here?
If we could use these proceedings to teach Americans something, what might we teach? Something about the nominee herself? Something about the Constitution? The role of the judiciary? I asked some experts—people who have either closely studied the confirmation process or participated in it—whether Sotomayor's confirmation could in fact become "teachable" and what we might do to get there. Here are their thoughts:
First off, not everyone agrees that there is much to be taught:
Benjamin Wittes (Brookings Institution fellow and author of Confirmation Wars, 2007):
I hate the phrase "teachable moment"—and the concept it reflects as pertains to judicial confirmations. The purpose of the confirmation process is not to educate the public. That is why we have schools, universities, newspapers, and books. The confirmation process exists to provide a check on the executive branch's appointment power and for no other reason. The use of it for other purposes, including as a forum for a broad societal education and debate concerning the role of the courts and the judicial function, warps the process and almost never generates a useful discussion. We end up arguing over whether wise Latinas have better judgment than their white male colleagues (when was the last time the Supreme Court had to rule on that?), whether the D.C. Circuit has too many judges (who cares?), on the value of empathy and umpiring. And it all ends up in the same place: with the nominee at once obliged to and unable to answer substantive questions regarding how he or she will behave on the bench. "Teachable moment" may sound good (actually, it doesn't even sound good), but it's just another phrase for senatorial extortion.
All of this might be defensible if it actually shed light on who a justice would become, but it doesn't. When John Paul Stevens was nominated by a Republican president, a Democratic Senate confirmed him in 16 days. Byron White took only 12. I would venture to guess that the most grueling confirmation process for either of them would not have led to a more informed sense on the part of the Senate of what it was getting than it had when it voted. What we're teaching ourselves, in other words, is nothing—and at a very high price.
Stephen L. Carter (William Nelson Cromwell professor of law at Yale and author of The Confirmation Mess, 1995):
I am always skeptical of the claim that a Supreme Court nomination provides a teachable moment. Passions tend to run too high—passions of narrow-issue constituencies on both sides of the aisle. I have nothing against narrow constituencies—knit together in a pluralist way, they create the shifting and unstable majorities a democracy needs. But their narrowness tends to focus their already strong energies, and, as a result, we get heat and flame but not much reason.
I would prefer, quite strongly, a confirmation process in which the nominee were not a participant. I really do not see another way to fix what is wrong. But, realistically, that is never going to happen. Too many people (including senators) are too invested in the exposure that the confirmation hearings provide. I do wish we would stop taking public opinion surveys on how people think the Constitution should be interpreted or what people think is the right result on any particular constitutional issue. If one believes in courts, one has to believe that the views of the public should not matter. This was the liberal position in American intellectual life for many years, and not only when a vacancy occurs on the court. For example, when the late Alexander Bickel wrote in the 1970s that the relationship between the Supreme Court and its public is "a conversation not a monologue," the liberal horror was palpable. He seemed to suggest that the court should be in dialogue with the people, rather than serving, as Anthony Lewis memorably described it, as this distant institution that now and then hurls down constitutional thunderbolts. Nowadays, opponents of a given nominee always seem to think that the views of the public should be "reflected" on the court. I am old-fashioned enough to believe the opposite.
Linda Greenhouse (Yale Law School senior fellow and former Supreme Court correspondent for the New York Times) is of the view that there is something to be learned from the confirmation process, but it's not about the nominee:
The confirmation process is less about the Supreme Court (let alone the nominee) than about the politics of the moment as reflected, however clumsily, in the questions the senators choose to ask. The transcript of a Supreme Court confirmation hearing is really a document of social and political history. For example, John Paul Stevens, nominated to the court in December 1975, nearly three years after the court's decision in Roe v. Wade, was the first post-Roe nominee, yet he was not asked a single question about abortion. That shows us that abortion was simply not a hot-button political issue in the mid-'70s—it was still waiting quietly in the wings for eventual capture by the right. So I don't look on confirmation hearings as meaningless theater but as windows into the American soul at a given moment in time.
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If the Democratic members of the Senate Judiciary Committee want to do this country a huge favor, they will use this confirmation hearing to demonstrate to the public that judicial activism is by no means the sole purview of liberals and that originalism and textualism is a bill of goods the rightist jurists pull out of storage when it suits their political goals and utters nary a word about it when they are distorting the text of a constitutional provision or a statute beyond recognition in order to achieve their desired result.
Most obviously, of course, they should take the ball that arch-conservative legal eagle Ed Whelan has handed them here, and run with it.
They should point to case after case in which the Rehnquist Court's conservative majority, with one after another 5-4 vote, overrode—held unconstitutional—democratic enactments in the absence of a clear constitutional violation.
But far more important, at least in my opinion, they should read aloud the actual language of constitutional provisions such as the Eleventh Amendment and the seminal constitutional-civil-rights jurisdictional statute, 42 U.S.C. § 1983—yes, the actual text of these provisions—and juxtapose the text of those provisions with what the Rehnquist Court Five claimed those provisions say.
The Democratic senators should read aloud, and reread aloud, and reread aloud again, the text of that statute, and then ask Sotomayor to compare her reading of the statute in the Malesko case with that of the self-styled textualist justices in overturning her panel's opinion. That alone should take care of the right's clichés, just fine, thank you, once and for all.
-- la savante
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