See Slate’s complete coverage of Sonia Sotomayor.
Judge Sonia Sotomayor faces off against the Senate judiciary committee next week in a bid to become the 111th justice of the U.S. Supreme Court. The public discussion of her suitability for that job suggests that the upcoming hearing will be a carnival of unanswerable questions (“Judge Sotomayor, can you prove to this committee that you are not, in fact, a reverse racist?”) and nonresponsive answers (“Senator, I must decline to answer that question as it may come before me in some future case.”).
Senators more accustomed to making speeches than asking questions will spill thousands of words in lieu of simple inquiries. And a judge more accustomed to asking questions than making speeches will avoid answering those simple questions in a blizzard of formulaic denials. The judicial confirmation process is more or less the political equivalent of Dancing With the Stars, in that the senators perform complex leaps and turns while admiring their hair in the mirror, while the nominee shuffles her feet a bit and calls it the foxtrot.
For those brave souls choosing to watch this spectacle on live television all week, it’s useful to point out that most of her interlocutors will not be addressing themselves to Judge Sotomayor at all, although they will frequently use her name. Instead, they will be talking aloud to their constituents back home, with Judge Sotomayor serving as a sort of constitutional blackboard on which to sketch out their legal views: Senators will talk at length about their pet projects and concerns, then turn to ask Judge Sotomayor what she thinks of their pet projects and concerns. She will say she is for them.
Thus, Sen. Lindsey Graham will say he is for adhering to the rule of law in wartime. Judge Sotomayor will heartily agree that the rule of law is most excellent in wartime. Sen. Chuck Grassley will expound upon the False Claims Act. Sen. Russ Feingold will talk about adherence to FISA. Judge Sotomayor will say vague, nice things about the False Claims Act and FISA, in much the same way she would say vague, nice things about a new baby held out for her inspection.
Other senators, such as Arlen Specter, will attempt to tap into Judge Sotomayor’s judicial subconscious, asking trick questions about whether she thinks precedent is important (she’ll say it is) and what she thinks of specific cases (she will take a page from Chief Justice John Roberts’ book and summarize cases, without opining on them). She will make blurry-yet-bold pronouncements about the right to privacy, personal autonomy, and bodily integrity—none of which will clarify her stand on abortion.
Both sides will ask how it’s possible that she has ruled in a handful of abortion cases over the years without ever addressing the rightness of abortion itself. She will reply that she is a careful minimalist who answers only the question before her. Both sides will grind their teeth in frustration at this marked absence of judicial activism, which makes it very hard to tell whether she will be a judicial activist once confirmed. Jeff Sessions will rail that Sotomayor should have been more of a judicial activist (he will say “zealous constitutional watchdog”) where gun rights were concerned. Everyone will thus agree that judicial activism is bad except insofar as it’s good.
Hovering like a bad smell over these un-questions and nonanswers, there will be unspoken bitterness and resentment about “identity politics” in America. Specifically, Republicans on the committee will grouse that as a Latina woman, Judge Sotomayor suffers from an excess of identity and a dangerous surplus of politics. Despite an 18-year judicial record and hundreds of opinions suggesting she’s a moderate, technical judge, Sotomayor’s critics will attempt to smoke out the raging inner racist/racialist/racial exceptionalist they suspect lurks deep within her. They will do so by asking her about her “wise Latina woman” comment from a 2001 speech at least 16 times over the course of the hearings. (She will say she should have chosen her words better.) They will attempt to get her to hiss and spit like an enraged boa constrictor. (She will be placid and cool.) She will be asked about judicial “empathy.” The conversation about empathy and the Constitution will be just as illuminating as the conversation about judicial activism.
Conservative white men on the committee will attempt to understand whether and why she hates conservative white men. They will do so by asking endless variations on the following question: “Did you arrive at your decision in the New Haven firefighters case because you hate white men?” She will assure them she does not, and tell charming stories of the firefighters she has known and the good times they have shared. Frank Ricci will scowl. David Cone will throw a slider high and inside. Al Franken will find a way to work “Learned Hand” into the conversation without once cracking a smile.
White Republican men on the committee will then probe her involvement with an all-women’s club and a Puerto Rican legal advocacy group that have done nothing wrong, in an effort to show that Judge Sotomayor’s female-ness and Puerto Rican-ness have metastasized into a form of constitutional brain fever that will, as Sen. Jeff Sessions describes it, “infect” all of her jurisprudence. And while they grouse and groan about Judge Sotomayor’s dangerous overidentification with poor and minority litigants, Republicans will grouse and groan that they are being painted as racists for even raising these questions. From the first to the last day of these hearings, her opponents will splutter that it’s Sotomayor’s racism that’s making them sound like such darn racists.
There is little doubt that Sotomayor will be handily confirmed. Her judicial record is unremarkable and her life story extraordinary. And this is the paradox of the confirmation shuffle: We learn too much that is trivial and not enough that is important. The whole process is constructed around the fiction that nominees are hideous monsters in the eyes of half of the judiciary committee. But calling someone an unintelligent, racist bully under the bright lights of C-SPAN leaves scars the nominee may never forgive nor forget. This confirmation game is insufficiently serious to vet a lifetime appointment to the high court yet serious enough to create lifelong resentments and grudges. (Think of Clarence Thomas.) We will learn again this week why confirmation hearings are both surreal and far too real. The court, and the country, might be better served by a bracing dance-off and a viewer poll.
A version of this piece appeared in Newsweek.